LD24-137

Tenant application · eviction. Outcome: granted. A. The Notice is invalid and the Application is allowed. B. The tenancy agreement continues in full force and effect.

Order text

Orders of the Director of Residential Tenancy
Docket 24-208 April 25, 2024
Introduction
[1] On April 3, 2024, the Tenant filed a Tenant Application to Determine Dispute (Form 2(A)) (the “Application”) with the Residential Tenancy Office (the “Rental Office”).
[2] The Application was filed pursuant to subsection 61.(5) of the Residential Tenancy Act (the “Act”) to dispute an Eviction Notice (From 4(A)) dated March 27, 2024, effective April 30, 2024, (the “Notice”). The Notice was given to the Tenant for the following reasons:
You have permitted an unreasonable number of occupants in the rental unit;
You or someone you have allowed on the property has caused damage to the rental unit;
You have failed to comply with a material term of the tenancy agreement.
[3] All relevant documents (including the Application, Notice of Hearing, and Evidence Package) were properly served in accordance with subsection 100.(1) of the Act.
[4] On April 16, 2024, a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). A Landlord representative (the “Representative”) and the Tenant participated in the hearing.
Issue to be Decided
i. Does the Tenant have to vacate the Rental Unit due to the Notice?
Summary of the Evidence
[5] In October of 2021, the Tenant and a previous landlord entered into an oral month-to-month tenancy agreement. The Landlord purchased the Rental Unit in May 2023 and in December 2023, the parties entered into a written month-to-month tenancy agreement. Rent is $1,300.00 due on the 1st day of the month. A security deposit of $500.00 was paid. The Rental Unit consists of a mobile home in a mobile home park owned by the Landlord.
Landlord’s Evidence and Submissions
[6] The Landlord submitted into evidence several documents including photographs of the Rental Unit, written submissions, messages between the parties, a copy of the tenancy agreement, and an inspection report. The Representative stated the Tenant has damaged the Rental Unit, the Tenant is always having people visit the Rental Unit which disturbs nearby tenants, and there is garbage around the Rental Unit.
[7] The Representative stated during an inspection in July 2023, the Representative observed a broken window at the Rental Unit. She stated the Tenant agreed to fix the broken window himself.
[8] The Representative stated the Rental Unit was inspected again on February 10, 2024, and damages were observed that were not present when the Rental Unit was purchased. On February 27, 2024, some of the damages were repaired and a copy of the inspection report was left for the Tenant at the Rental Unit.
[9] During this inspection the Representative found that the Tenant had removed two fire alarms, a plastic lid had melted on a stove burner, and pizza boxes were in the oven. There were damaged kitchen taps due to water damage, a shower tap was missing, and the inside of the toilet tank was broken. The header of the back door was cut off, a bedroom was full of garbage and had a bad odor, and the floors were damaged from the Tenant’s dog. The Tenant had changed the locks without permission and there was garbage in the back yard.

Orders of the Director of Residential Tenancy

[10] The Representative stated there are an unreasonable number of visitors who often attend the Rental Unit. Other tenants who live in the mobile home park have complained there are often people coming and going from the Rental Unit, especially on the weekends. The Representative stated it is not a party house and the Tenant is disturbing the other tenants in the area. The Representative stated this is also a breach of a material term of the tenancy agreement.
Tenant’s Evidence and Submissions
[11] The Tenant submitted into evidence messages between the parties, photos of the Rental Unit, and written submissions. The Tenant denied all the accusations presented by the Representative but did state his son melted plastic on a stove burner by accident. He denied having several visitors over to the Rental Unit and stated he rarely has any visitors. He stated he submitted messages showing the Representative was aware his son was living in the Rental Unit and she was okay with it.
[12] The Tenant denied breaking a window and stated the door was damaged before the Landlord purchased the Rental Unit. He stated the smoke detectors were never in the Rental Unit since he moved in. He stated he told the Representative he required new taps and the only damage to the toilet was a broken chain. He stated the back yard is clean and the only thing in the backyard is the old door which the Representative replaced. He stated his dog does not urinate in the Rental Unit.
Post Hearing Evidence and Submissions
[13] On April 17, 2024, the Representative sent the Rental Office six photographs she stated show the Rental Unit and that the photos were taken by a realtor prior to the Landlord purchasing the Rental Unit in May 2023.
[14] The photographs were sent to the Tenant for his submissions. The Tenant emailed the Rental Office several times between April 18, 2024, and April 21, 2024. The Tenant stated the photographs are either not of the Rental Unit or do not reflect the state of the Rental Unit at the time of the Landlord’s purchase. He stated the photographs show furniture and appliances that are not his and are not in the Rental Unit. He stated the Rental Unit did not look like these photographs when he moved in or during the time he has lived there.
[15] The Tenant’s responses were sent to the Representative for her submissions. The Representative stated the photos of the Rental Unit prior to the sale may have been staged for the sale or the items in the photos may belong to another person who was living with the Tenant. She stated the photographs submitted into evidence by the Tenant are from before repairs were completed by the previous landlord.
[16] The Representative also submitted two photographs she stated were recently taken by a neighbour of the Tenant. She stated the photographs depict the outside of the Rental Unit. She stated the photographs show that there are golf balls and garbage still in the yard.

Orders of the Director of Residential Tenancy

Analysis
Does the Tenant have to vacate the Rental Unit due to the Notice?
[17] In applications where there is a dispute over an eviction notice, it is the Landlord’s burden to prove, on a balance of probabilities, their reasons for terminating the tenancy agreement. This means the Landlord must provide the decision-maker with sufficiently clear and convincing evidence to prove their claims. The relevant law is as follows
61. Landlord’s notice for cause
(1) A landlord may end a tenancy by giving a notice of termination where one or more of the following applies:
(c) there is an unreasonable number of occupants in the tenant’s rental unit;
(f) the tenant or a person permitted on the residential property by the tenant has caused unreasonable damage to a rental unit or the residential property;
(h) the tenant (i) has failed to comply with a material term of the tenancy agreement, and (ii) has not corrected the situation within a reasonable time after the landlord has given written notice to do so;
Unreasonable Number of Occupants / Material Term
[18] The Representative stated the Tenant frequently has an unreasonable number of occupants at the Rental Unit, especially on weekends. She stated the frequency of visitors to the Rental Unit is disturbing other tenants in the surrounding units. The Representative stated this is also a breach of a material term of the tenancy agreement. The Tenant denied having people over frequently and stated he rarely has any visitors.
[19] The Representative stated the Tenant is disturbing other tenants, however no evidence was provided to establish that the Representative has witnessed this alleged behaviour. The Officer also notes that none of the complaining tenants testified at the hearing to provide affirmed testimony about the alleged behavior, which the Officer finds would have been of assistance for the determination of this matter.
[20] The Representative stated by disturbing other tenants, the Tenant has breached a material term of the tenancy agreement. However, the Officer does not find that the Representative has established the Tenant has received written notice of the alleged non-compliance of a material term of the tenancy agreement, or that the Tenant was given the opportunity to correct the situation within a reasonable time, as both are requirements under the Act.
Damages
[21] The Representative stated she observed a broken window at the Rental Unit in July 2023 and found parts of the Rental Unit damaged and unclean during a February 2024 inspection. The Representative submitted photographs of the outside of the Rental Unit which depict some garbage and debris in the back yard. After the hearing, the Representative submitted photographs she stated depicted the condition of the Rental Unit from May 2023 before the purchase of the property.

Orders of the Director of Residential Tenancy

[22] The Tenant denied causing the damages and stated most of the damage existed before the Landlord purchased the Rental Unit. He denied his dog urinates in the Rental Unit, the melted plastic on the stove was an accident, and the yard has been cleaned up. The Tenant stated the post-hearing photographs submitted by the Representative do not depict the condition of the Rental Unit from May 2023 and he noted discrepancies between the photographs and what he stated the interior of Rental Unit looks like.
[23] The Representative stated the Tenant has caused damage to the Rental Unit. However, the Officer notes both parties provided conflicting evidence as to the state of the Rental Unit when it was purchased in May 2023. Both parties provided conflicting evidence regarding the post-hearing evidence. Both parties also provided conflicting evidence as to whether damages noted during the February 2024 inspection were caused by the Tenant, were wear or tear, or if the damages were pre-existing prior to the Landlord purchasing the property.
[24] The Officer notes the Tenant stated his son accidentally melted plastic on the stove and the Representative stated there is still some garbage in the yard of the Rental Unit. However, the Officer does not find these situations reach a level of behaviour breaching the Act or the tenancy agreement, or that the Tenant has been given written notice to correct these situations within a reasonable time.
Conclusion
[25] The Landlord has the burden to prove, on a balance of probabilities, any and all reasons for terminating the tenancy agreement. After reviewing the documentary evidence and testimony of the parties, the Officer does not find that the Landlord has provided sufficient evidence to establish that the Tenant has breached subsections 61.(1)(c), (f), or (h) of the Act.
[26] The Notice is invalid and the Application is allowed.
[27] The tenancy agreement continues in full force and effect.
[28] This Order will be sent to the parties by email.
IT IS THEREFORE ORDERED THAT
A. The Notice is invalid and the Application is allowed.
B. The tenancy agreement continues in full force and effect.
DATED at Charlottetown, Prince Edward Island, this 25th day of April, 2024.
(sgd.) Mitchell King Mitchell King Residential Tenancy Officer

Orders of the Director of Residential Tenancy

NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission (the “Commission”) by serving a Notice of Appeal with the Commission and every party to this Order within 20 days of this Order.
If a document is sent electronically after 5:00 p.m., it is considered received the next day that is not a holiday. If a document is sent by mail, it is considered served on the third day after mailing.
Filing with the Court
If no appeal has been made within the noted timelines, this Order can be filed with the Supreme Court of Prince Edward Island and enforced as if it were an order of the Court.