LD23-403

Tenant application · repairs, disturbance. Outcome: granted. A. The Landlord shall pay or credit the Tenant $500.00 forthwith.

Order text

Orders of the Director of Residential Tenancy
Docket 23-370 August 29, 2023
Introduction
[1] On May 15, 2023 the Tenant filed a Tenant Application to Determine Dispute (Form 2A) (the “Application”) with the Residential Tenancy Office (the “Rental Office”) seeking the following remedy:
To request a determination that my landlord contravened my right to quiet enjoyment, entered the rental unit unlawfully, prohibited and/or restricted access to the rental unit, changed the locks or failed to secure the rental unit, failed to repair or maintain the rental unit, or any other material term of the tenancy agreement.
[2] The Tenant is seeking $500.00 in return of rent and served the Application on the Landlord.
[3] On August 14, 2023 a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Tenant and representatives of the Landlord participated.
Issue to be Decided
i. Is the Tenant entitled to a return of rent?
Summary of the Evidence
[4] On March 1, 2023 the Landlord and the Tenant entered into a written fixed term tenancy agreement for the Residential Property. The rental unit is situated in one half of a side-by-side duplex. Rent is $1,400.00 due on the first day of the month. A security deposit of $1,400.00 was required and paid.
Tenant’s Evidence and Submissions
[5] The Tenant stated that hot water is included in the tenancy agreement, and that electricity is her responsibility. The Tenant stated that her monthly electricity bill averages $67.00 a month. The Tenant stated that between February and April the electricity bill was $725.70. From April to May 2023 the electricity bill was $331.99. The Tenant stated that the hot water was being metered on the electrical meter which resulted in much higher bills. The Tenant admitted to using some electrical heaters but the consumption was not enough to justify such a large increase. The Tenant stated that she spent $1,057.69 on electricity bills and is only seeking $500.00 in return. The Tenant stated that she tried to negotiate with the representatives of the Landlord.
[6] The Tenant submitted into evidence the two Maritime Electric bills relevant to the Application.
Further, numerous text message conversations between the Tenant and the Landlord’s representative. The Tenant submitted an e-mail conversation with an employee of Maritime Electric. The employee through their estimated calculations determined $554.86 of the Tenant’s last electricity bill was from hot water usage. The Tenant submitted into evidence a spreadsheet from Maritime Electric with her electricity consumption for the rental unit.
Landlord’s Evidence and Submissions
[7] The Landlord’s representative did not dispute that hot water is included in the tenancy agreement and that electricity is the responsibility of the Tenant. The Landlord’s representative also did not dispute that there was an error at the rental unit which led to the hot water being on the electrical meter. The representative stated that the issues has since been corrected.
[8] The representative stated that the calculations submitted into evidence are “assumptions” and that there is no clear breakdown of the usage which would include the appliances or the electrical heater used by the Tenant. The representatives stated that the Tenant cannot use the hot water “24/7” and that $500.00 is too much in any return of rent. The representative offered $200.00 return.

Orders of the Director of Residential Tenancy

Analysis
[9] The Officer notes that subsections 1.(n), and 1.(w) of the Act state:
Definitions In this Act, (n) “rent” means money paid or agreed to be paid, or value or a right given or agreed to be given, by or on behalf of a tenant to a landlord in return for the right to possess a rental unit, for the use of common areas and for services or facilities, but does not include… (w) “tenancy agreement” means an agreement, whether written or oral, express or implied, between a landlord and a tenant respecting possession of a rental unit, use of common areas and the provision of services and facilities.
[10] Further, the Officer notes that sub-subsections 21.(1)(a) and (b) of the Act state:
Terminating or restricting services or facilities A landlord shall not terminate or restrict a service or facility if (a) the service or facility is reasonably related to the tenant’s use and enjoyment of the rental unit as living accommodation; or (b) the service or facility is a term of the tenancy agreement.
[11] The Officer finds that the tenancy agreement was not included in the updated evidence package.
The Officer notes that it was included in a group of documents which the Tenant attempted to include into evidence late, which was not accepted by the Officer. However, despite the absence of this document from the record, the Officer finds that based on the undisputed testimony of the parties that the services provided in the tenancy agreement are not in dispute. Electricity is the responsibility of the Tenant and water/hot water is the responsibility of the Landlord.
[12] The facts of this case come down to the Tenant paying a higher than normal electricity bills from February to May 2023. The Tenant paid $1,057.69 for that duration. The Tenant argues that a large portion of that bill was the result of hot water (a responsibility of the Landlord). The Tenant is seeking $500.00 in return of rent. Based on the testimony of the parties and evidence provided, the Officer finds that the Tenant should not be responsible for paying the hot water portion of the electricity bill as it was the result of an error at the rental unit meter system. This finding is consistent with what the Act’s definitions of “rent” “services” and “tenancy agreement” coupled with subsubsection 21.(1)(b) of the Act.
[13] The Officer finds that the Tenant provided credible third-party estimates into evidence. The Officer finds that a consumption spreadsheet, along with third party estimated calculations provide a reasonable idea of the amount of kilowatts used in the rental unit. The Officer notes that the Tenant is seeking $500.00 in return of rent, 47.3% of the total cost the Tenant paid in electricity bills (which included hot water costs). The Officer finds that this is a reasonable amount to request returned based on the evidence provided for the Application. Therefore, the Application is allowed.
Conclusion
[14] The Application is allowed.
[15] The Landlord shall pay or credit the Tenant $500.00 forthwith.

Orders of the Director of Residential Tenancy

IT IS THEREFORE ORDERED THAT
A. The Landlord shall pay or credit the Tenant $500.00 forthwith.
DATED at Charlottetown, Prince Edward Island, this 29th day of August, 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 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.