LD23-200

Tenant application · eviction, disturbance. Outcome: granted. A. The Tenants may continue to reside in the Residential Property. B. The tenancy agreement shall continue in full force and effect.

Order text

Orders of the Director of Residential Tenancy
Docket 23-303 May 12, 2023
Introduction
[1] On April 19, 2023 the Tenants filed a Tenant Application to Determine Dispute (Form 2A) (the “Application”) with the Residential Tenancy Office (the “Rental Office”). The Application is disputing a Notice of Termination pursuant to subsection 61.(5) of the Act.
[2] Attached to the Application was a Notice of Termination by Landlord (Form 4A) dated April 14, 2023 effective May 15, 2023 (the “Notice”). The Notice was served on the Tenants for the following reasons:
1. You are repeatedly late in paying rent;
2. You or someone you have allowed on the property have disturbed or endangered others;
and
3. You have failed to comply with a material term of the tenancy agreement.
[3] The Tenants served the Application on the Landlord by e-mail on April 19, 2023. The Landlord served the Notice on the Tenants by posting it to the front door of the Premises on April 14, 2023.
[4] On May 12, 2023 a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Tenants appeared, representing themselves. The Landlord was represented by the Representative.
Issue to be Decided
i. Do the Tenants have to vacate the Residential Property due to the Notice?
Summary of the Evidence
[5] In August 2020 the Landlord and the Tenants entered into a written fixed term tenancy agreement for the Residential Property. The fixed term went from August 8, 2020 to July 7, 2021 and then converted to a month-to-month agreement. The Residential Property is a rental unit situated in a 36-rental unit building (the “Building”). Rent is $1,650.00 due on the 8th day of the month. A security deposit of $1,650.00 was required and paid.
Landlord’s Evidence and Submissions
[6] The Representative submitted into evidence two videos and numerous photographs. The Representative stated that the Tenants are always late with paying the rent. The Representative stated that the Tenants have been late paying rent since the beginning of the tenancy agreement.
However, the Representative stated that the Tenants were late paying rent in December 2022, January 2023, and February 2023. The Representative submitted into evidence late two photographs of Form 4s. The Representative stated that these two Form 4s were for December 2022 and February 2023. The Representative stated that the Tenants currently have $50.00 outstanding in arrears.
[7] The Representative stated that she received four complaints from other tenants in the Building regarding loud music, the smell of smoke and disruption from the Tenant’s dog. The Representative stated that the Tenants smoke on the Residential Property’s patio. Further, that the cigarette butts have caused fire to the mulch outside the Residential Property. The Representative stated that there is a lot of dog feces in the yard from the Tenant’s dog. The Representative stated that she has given many warnings to the Tenants about the dog feces, smoking and noise complaints.

Orders of the Director of Residential Tenancy

Tenant’s Evidence and Submissions
[8] The Tenants submitted numerous photographs and letters into evidence. The Tenants denied the characterization of the Representative’s testimony regarding rent being repeatedly late. The Tenants stated that rent is due on the 8th of each month, and that some months they pay in two or three installments before the due date. The Tenants stated that e-transfer is the method of payment and with a $1,000.00 limit, it requires two e-transfers to complete the rent payment. The Tenants admitted that they were late paying rent in both January and February 2023 due to some financial
issues and constraints. The Tenants stated that they informed the Representative that they were going to be late those months. The Tenants stated that they were not aware of the $50.00 arrears and that they would pay it.
[9] The Tenants denied the Representative’s testimony that they were ever warned regarding loud music, a barking dog or smoking in the Residential Property. The Tenants stated that one of them smokes, however, they smoke outside and 15-feet away from the Building. The Tenants stated that the tenants above them smoke, and throw their butts on the lawn in front of their patio. The Tenants stated that they were the ones who called 9-11 over fire in the Building’s mulch. The Representatives stated that the mulch was three units over and was not the mulch in front of the Residential Property.
[10] The Tenants stated that one dog lives in the Residential Property, Lyla. The Representative is aware of Lyla as she has resided in the Residential Property since the beginning of the tenancy agreement. The Tenants denied any barking complaints. The Tenants stated that they tried to get another dog, however, once the Representative denied the request, the other dog was taken out of the Residential Property. The Tenants stated that the dog feces are from the winter months when it was not easy to clean. The Tenants received a complaint from the Representative regarding the dog feces. The Tenants stated that on May 7, 2023 the lawn was cleaned of all the dog feces.
Analysis
[11] The Landlord’s reasons for terminating the tenancy agreement are pursuant to sub-subsections
61.(1)(b), (d) and (h) of the Act, which state:
Landlord’s notice for cause A landlord may end a tenancy by giving a notice of termination where one or more of the following applies:
(b) the tenant is repeatedly late in paying rent;
(d) the tenant or a person permitted on the residential property by the tenant has (i) significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property;
(ii) seriously jeopardized the health or safety or a lawful right or interest of the landlord or another occupant, or (iii) put the landlord’s property at significant risk;
(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.

Orders of the Director of Residential Tenancy

[12] The Officer notes that in such matters where there is a dispute over a Notice of Termination by Landlord, it is the Landlord’s burden or onus to prove, on a balance of probabilities, any and all reasons alleged in the Notice.
Reason 1: Repeatedly late in paying rent
[13] The Officer finds that the Landlord has not provided sufficient evidence to establish its claim that the Tenants are repeatedly late in paying rent which would warrant a termination of the tenancy agreement. The Officer notes that the Representative submitted two photographs after the commencement of the hearing. The Officer permitted these documents for their relevancy, however, the Officer finds that the two photographs lack quality to sufficiently read the dates and the reasons for the Form 4s. Finally, the Officer finds that there is no evidence to establish that the Tenants have been late in paying rent for the months of March, April or May 2023.
Reason 2: Tenants have disturbed or endangered other occupants or the landlord
[14] The Officer finds that the Landlord has not provided sufficient evidence to establish its claim that the Tenants have disturbed or endangered other occupants, the Landlord or the Landlord’s property. The Officer finds that the Landlord has failed to establish a causal link to establish that the Tenants are smoking in the Residential Property and/or have caused the fires to the Building’s mulch. Further, the Officer finds that the Landlord has not provided any witness testimony nor witness statements under affirmation to substantiate the complaints testified to by the Representative.
[15] The Officer finds that the Landlord’s evidence establishes that the Tenant’s dog feces have become a problem at the Building. However, based on the testimony of the parties, the Officer finds that the Tenant has taken appropriate steps to remove and clean the Building’s backyard of his dog’s feces.
At this time, the Officer finds that this issue does not warrant the termination of the tenancy agreement, but reminds the Tenants that further complaint may result in the termination of the tenancy agreement.
Reason 3: Tenants have failed to comply with a material term of the tenancy agreement
[16] The Officer finds that the Landlord has not provided sufficient evidence to establish its claim that the Tenants have failed to comply with a material term of the tenancy agreement. The Officer finds that the Landlord did not provide into evidence the tenancy agreement. Further, the Officer finds that the Representative testified that the material term referred to in the Notice was smoking in the Residential Property. The Officer finds that the Landlord has not provided sufficient evidence to substantiate this claim.
[17] The Officer finds that based on the totality of the evidence and the testimony provided that the Landlord has failed to prove its claims to terminate the tenancy agreement on the Notice. Therefore, the Notice is invalid and the Application is allowed.
Conclusion
[18] The Notice is invalid and the Application is allowed.
[19] The Tenants may continue to reside in the Residential Property and the tenancy agreement shall continue in full force and effect.

Orders of the Director of Residential Tenancy

IT IS THEREFORE ORDERED THAT
A. The Tenants may continue to reside in the Residential Property.
B. The tenancy agreement shall continue in full force and effect.
DATED at Charlottetown, Prince Edward Island, this 12th day of May, 2023.
(sgd.) Cody Burke Cody Burke 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 7 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.