LD24-300

Landlord application · security deposit, compensation. Outcome: granted. I. The Landlords shall retain the full amount of the security deposit and interest. II. The Tenants shall pay the Landlords $1,373.17 by October 3, 2024.

Linked prior order: LR24-06

Order text

Orders of the Director of Residential Tenancy
Docket 24-444 September 13, 2024
INTRODUCTION
[1] The applicable legislation is the Residential Tenancy Act (the “Act”).
[2] On July 15, 2024 the Landlords filed a Form 2 (B) Landlord Application to Determine Dispute (the “Application”) with the Residential Tenancy Office (the “Rental Office”). The Application seeks to retain the Tenants’ security deposit and seeks compensation exceeding the full amount of the security deposit. The Application was emailed to the Tenants.
[3] On July 25, 2024 the Rental Office emailed the parties notice of a teleconference hearing, along with a copy of the Application.
[4] On August 6, 2024 the Landlords amended their monetary claim above the security deposit.
[5] On August 15, 2024 the Rental Office made available the evidence package (“EP”) via Titan File.
[6] On August 18, 2024 the Rental Office emailed the Tenants 16-pages of evidence submitted by the Landlords which was omitted from the EP in error.
[7] On August 20, 2024 at 9:00 a.m. a teleconference hearing was held before the Residential Tenancy Officer (the “Officer”). The Tenants and one of the Landlords (the “Landlord”) participated at the hearing.
ISSUES
i. Are the Landlords entitled to retain the security deposit?
ii. Are the Landlords entitled to compensation exceeding the security deposit?
SUMMARY OF EVIDENCE
[8] The parties entered into a written, fixed-term tenancy agreement for the period of October 1, 2018 to September 30, 2019, which the parties renewed the fixed-term. Upon expiry of the fixed-term, the parties continued the tenancy month-to-month. Rent was $1,783.00 due on the first day of the month. On August 24, 2018 the Tenants paid the Landlords $1,650.00 for the security deposit.
[9] On June 30, 2024 the Tenants vacated the Rental Unit and the tenancy ended.
LANDLORDS’ EVIDENCE AND SUBMISSIONS
[10] The Landlords submitted 131-pages of documents into evidence including: written submissions, a copy of the tenancy agreement, an invoice from Empire Property Management, emails, a Form 4 (A) Eviction Notice dated June 2, 2024, an Irving Energy invoice, Label Construction Ltd. invoice, an e-transfer, receipts, and photographs of the Rental Unit at the end of the tenancy.
[11] The Landlords are seeking $4,602.29 in total compensation. The Landlord’s compensation is broken down as follows:
1. $17.83 for late rent penalty (1%) for June 2024;
2. $352.36 for garbage disposal Label Construction garbage bin;
3. $724.50 for cleaning (9 hours x 2 people x $35.00/hr.);
4. $801.80 for oil fill up;
5. $115.00 for grass cutting;
6. $60.80 for replaced toilet seat;
7. $230.00 for wall/door repairs and patching; and
8. $2,300.00 for painting.

Orders of the Director of Residential Tenancy

[12] The Landlord stated that the Rental Unit was in poor condition after the Tenants vacated. The Rental Unit required a major clean, repairs to the walls and doors, and a complete paint job because of the damage and the strong smell of cat urine.
[13] The Landlord stated that he submitted numerous photographs of the state of the Rental Unit after the tenancy ended. The photos show that the condition of the Rental Unit was dirty and the damage caused was beyond normal wear and tear. The Landlord stated that the Rental Unit was painted in 2018 prior to the Tenants moving into the Rental Unit.
[14] The Landlord stated that under the tenancy agreement it is the Tenants’ responsibility to refill the oil tank before vacating. The Landlord stated that the Tenants did not fulfill this responsibility so he had to refill the oil tank.
[15] The Landlord stated that due to the amount of garbage he rented a dumpster. The Landlord stated that the floors were not clean and that gum was stuck to the floors. The cupboards, sink, and appliances required cleaning. The front and back yard was littered with garbage. The Rental Unit’s shed also had a lot of garbage which required to be removed.
[16] The Landlord stated that grass cutting is the responsibility of the Tenants and that the grass was not cut for several weeks prior to the Tenants vacating.
[17] The Landlord stated that the Tenants were late paying June’s rent. The Tenants paid on June 12,
2024. He is charging the Tenants a 1% late penalty.
[18] The Landlord stated that he emailed the Tenants prior to them vacating to remind them to clean the Rental Unit.
TENANTS’ EVIDENCE AND SUBMISSIONS
[19] The Tenants did not submit any documents into evidence, however, did submit six video recordings. The recordings are a walkthrough of the Rental Unit at the end of the tenancy.
[20] The Tenants stated that they are not disputing the cost of refilling the oil tank or the 1% late penalty for paying June’s rent late.
[21] The Tenants stated that throughout the tenancy they generally fixed and repaired the Rental Unit themselves. The Tenants stated that they brought any issues to the Landlords attention if they were unable to repair it themselves. The Tenants stated that some issues were not repaired by the Landlords, and caused some of the damage brought up by the Landlords.
[22] The Tenants stated that Hurricane Fiona caused damage to the backyard of the Rental Unit. A tree fell onto the shed which impeded them from cleaning out the shed or properly cutting the grass around the shed. However, the grass was cut shortly before they vacated the Rental Unit.
[23] The Tenants stated that they cleaned the Rental Unit, and that some garbage was left behind. The Tenants stated that a 20-foot dumpster was not necessary for the garbage that was left behind.
The Tenants stated that the Landlord used the dumpster to remove some trees and for debris from the renovations to the Rental Unit.
[24] The Tenants stated that the toilet seat broke during the tenancy so they replaced it with their own.
The Tenants stated that they took the toilet seat with them when they vacated the Rental Unit.
[25] The Tenants stated that they painted the Rental Unit in 2019 with the Landlords’ knowledge.
[26] The Tenants stated that the damage to the walls and the doors were pre-existing, and denied causing the damage.

Orders of the Director of Residential Tenancy

ANALYSIS & CONCLUSION
[27] The Application is made in accordance with section 75 of the Act and seeks to make a claim against the security deposit, pursuant to subsection 40(1) of the Act. Further, the Application seeks an
order for additional compensation exceeding the full amount of the security deposit. Subsection 40(1) of the Act states:
40. Return of security deposit
(1) Except as provided in subsection (2) or (3), within 15 days after the date the tenancy ends or is assigned, the landlord shall either (a) issue payment, as provided in subsection (5), of any security deposit to the tenant with interest calculated in accordance with the regulations; or (b) make an application to the Director under section 75 claiming against the security deposit.
[28] Further, clauses 39(2) and 85(1)(d) of the Act state:
39. Obligations on vacating
(2) When a tenant vacates a rental unit, the tenant shall (a) leave the rental unit reasonably clean and undamaged, except for reasonable wear and tear; and (b) give the landlord all the keys or other means of access that are in the possession or control of the tenant and that allow access to and within the residential property.
85. Powers of the Director
(1) After hearing an application, the Director may make an order (d) requiring a landlord to compensate a tenant or a tenant to compensate a landlord for loss suffered or expense incurred as a result of a contravention of this Act or the tenancy agreement.
[29] The Landlords initiated the Application under the Act. The Landlords bear the onus of proving their claims on a balance of probabilities. This means that a decision-maker must be satisfied there is sufficiently clear and convincing evidence to support their claims.
[30] The Landlords seek a monetary order of $4,602.29. This includes:
1. $17.83 for late rent penalty (1%) for June 2024;
2. $352.36 for garbage disposal Label Construction garbage bin;
3. $724.50 for cleaning (9 hours x 2 people x $35.00/hr.);
4. $801.80 for oil fill up;
5. $115.00 for grass cutting;
6. $60.80 for replaced toilet seat;
7. $230.00 for wall/door repairs and patching; and
8. $2,300.00 for painting.

Orders of the Director of Residential Tenancy

CLAIMS
1. Late rent penalty (1%) for June 2024 in the amount of $17.83
[31] The Landlord stated that June 2024 rent was paid late (June 12, 2024). The Landlord is charging a 1% penalty. The Tenants did not dispute this claim and admitted to paying the rent late.
[32] The Landlord submitted a bank statement dated June 12, 2024 showing an e-transfer from the Tenants in the amount of $1,783.00. Subsections 20(1) and (2) of the Act prescribe the prohibited and allowed fees a landlord may charge. The provisions state:
20. Prohibited fees during tenancy
(1) A landlord shall not charge (a) a guest fee, whether or not the guest stays overnight;
(b) a fee for replacement keys or other access devices if the replacement is required because the landlord changed the locks or other means of access;
(c) a fee in relation to any cost incurred by the landlord to repay a security deposit;
or (d) a fee for a service prescribed in the regulations.
Fees charged by landlord (2) A landlord may charge a fee for (a) the actual cost of replacing keys or other access devices;
(b) the actual cost of additional keys or other access devices requested by the tenant;
(c) a service fee charged by a financial institution to the landlord for the return of a tenant’s cheque;
(d) an administration fee of not more than $25 for the return of a tenant’s cheque by a financial institution;
(e) a fee for services or facilities requested by the tenant, if those services or facilities are not required to be provided under the tenancy agreement; and (f) a service prescribed in the regulations.
[33] The Officer finds that the Landlords have not provided evidence that they have incurred an administration fee or any fee from a financial institution for the late payment of rent from the Tenants. Despite the Tenants not disputing this claim, the Officer notes that section 5 of the Act states:
5. This Act cannot be avoided
Except as specifically provided in this Act, a waiver or release by a tenant of the rights, benefits or protections under this Act is void and of no effect.
[34] Further, the Officer notes that the Landlords submitted that the tenancy agreement permits the 1% penalty. However, the Officer finds that the tenancy agreement was entered into on August 24,
2018. The Rental of Residential Property Act (the “Former Act”) was the law at the time. Every tenancy agreement included the statutory conditions. Specifically, subsection 6(8) of the Former Act permitted a one percent late fee for late payment of rent. However, the Act does not have the same statutory conditions and in the absence of any evidence to prove the Landlords incurred such an administration fee as permitted by the Act, this claim is denied.

Orders of the Director of Residential Tenancy

2. Garbage disposal in the amount of $352.36
[35] The Landlords submitted an invoice dated July 17, 2024 from Label Construction Ltd. into evidence in the amount of $352.36. The Landlords also submitted numerous photographs showing a lot of garbage and items left behind by the Tenants. The Tenants disputed the necessity of renting a 20- foot dumpster and that the Landlord utilized the dumpster to remove trees and his own debris from renovations.
[36] The Officer finds that there are no photographs of the dumpster in evidence. However, the photographs submitted into evidence demonstrate that there is a large volume of items and garbage that would have needed to be thrown into the dumpster which belonged to the Tenants.
In this case, the Officer finds that the $352.36 fee for the dumpster is justifiable and the claim is allowed.
3. Cleaning the Rental Unit in the amount of $724.50
[37] The Landlords submitted numerous photographs of the Rental Unit at the end of the tenancy. The Tenants submitted six video recordings of a walkthrough of the Rental Unit at the end of the tenancy.
[38] To begin, the Officer notes that the Landlords did not submit any “before” photographs into evidence to demonstrate the state and/or condition of the Rental Unit prior to the start of the tenancy. The best evidence a landlord can provide for these types of applications is “before” and “after” photographs of a rental unit, accompanied with the inspection reports completed at the beginning and the end of the tenancy.
[39] However, the Officer finds that the photographic evidence submitted by the Landlords demonstrates that the Rental Unit was below a standard of reasonably clean. Further, the Tenants’ video recordings also demonstrate that there were some areas unclean, damaged and items remaining in the Rental Unit present in the video recordings.
[40] Based on the above mentioned evidence, the Officer finds that the Landlords have proven their claim for cleaning. However, the Landlords claim 9-hours of cleaning at $35.00/hr. for two people.
The Officer adjusts this amount to allow for the 9-hours of cleaning with two people at $30.00/hr.
This claim is allowed, in part for a total amount of $540.00.
4. Refill oil tank in the amount of $801.80
[41] The undisputed testimony from the parties is that the refilling of the oil tank was the Tenants’ responsibility in the tenancy agreement. The Landlords submitted a copy of the tenancy agreement, photos of the oil tank’s meter and an invoice from Irving Oil. The Officer finds that this claim is allowed.
5. Grass cutting in the amount of $115.00
[42] The Landlords submitted an invoice by Empire Property Management for $115.00 for grass cutting.
The Landlords stated that lawn care is not included in the tenancy agreement, and when the Tenants vacated, it was clear the lawn was not cut for several weeks.
[43] The Tenants disputed this claim and stated that the lawn was cut not long before they vacated. The Tenants stated that areas of the lawn around the shed were not cut because of the damage caused by Hurricane Fiona. The Tenants stated that the Landlords own the property management company that created the invoice.

Orders of the Director of Residential Tenancy

[44] The Officer finds that photographic evidence does not conclusively prove that the grass was not cut for several weeks. The Officer finds that the tenancy agreement does not have lawn care selected as an included service. It is reasonable to conclude from this that during the tenancy it was the responsibility of the Tenants.
[45] In this case, the Officer finds that the evidence does not substantiate the Landlords’ claim and that it is not reasonable to put this cost on the Tenants after the tenancy ended. This claim is denied.
6. Replaced toilet seat in the amount of $60.80
[46] The Officer finds that the testimony from the parties proves that during the tenancy, the toilet seat broke and the Tenants purchased their own toilet seat. When the Tenants’ vacated they took their toilet seat with them. The Landlords submitted photographs of the missing toilet seat. Despite the Tenants’ replacing the toilet seat, the initial toilet seat at the beginning of the tenancy was owned by the Landlords. The Landlords submitted a receipt for the toilet seat into evidence. The Officer finds that this claim is allowed.
7. Repairs to the walls and doors in the amount of $230.00
[47] The Landlords submitted into evidence an invoice by Empire Property Management for $230.00 for wall/door repairs/patching. The Landlords also submitted numerous photographs into evidence demonstrating the damage to the Rental Unit.
[48] To begin, the Officer notes that the Landlords did not submit any “before” photographs into evidence to demonstrate the state and/or condition of the Rental Unit prior to the start of the tenancy. The best evidence a landlord can provide for these types of applications is “before” and “after” photographs of a rental unit, accompanied with the inspection reports completed at the beginning and the end of the tenancy.
[49] The Tenants disputed this damage and stated that the damage was pre-existing. The Officer finds that the photographic evidence demonstrates that there is significant damage to the Rental Unit’s walls. The damage that is shown in the photographs is beyond normal wear and tear with many marks, scratches, a TV mount left behind (which the Tenants did not dispute was theirs) and holes.
The Officer finds that this claim is allowed to make the necessary repairs.
8. Painting in the amount of $2,300.00
[50] The Landlords submitted into evidence an invoice from Empire Property Management for $2,300.00 for painting. The Landlords submitted numerous photographs into evidence showing the state of the Rental Unit’s walls. The Landlords stated that the painting was necessary due to a strong smell of cat urine.
[51] To begin, the Officer notes that the Landlords did not submit any “before” photographs into evidence to demonstrate the state and/or condition of the Rental Unit prior to the start of the tenancy. The best evidence a landlord can provide for these types of applications is “before” and “after” photographs of a rental unit, accompanied with the inspection reports completed at the beginning and the end of the tenancy.
[52] The Officer has already awarded the Landlords compensation for the repairs to the walls and doors.
[53] The Officer notes that the Island Regulatory and Appeals Commission in Order LR24-06 applied the principle of betterment when taking into account depreciation in determining the amount to be awarded to a landlord. The basic principle at common law is that a party should not be put in a better position than they would have been had the wrongdoing not occurred.1 1 Order LR24-06 paragraph 24.

Orders of the Director of Residential Tenancy

[54] In this case, the tenancy lasted approximately six years. It would be common practice, and expected that after the tenancy ended, the Landlords would freshly paint the Rental Unit. The Landlords provided direct evidence that they could smell cat urine in the Rental Unit, and the damage to the Rental Unit’s walls were the reason for the painting of the entire Rental Unit. The Officer does not doubt the Landlords’ reasoning for painting the Rental Unit; however, despite the reasoning, it is most likely that the Landlords would have painted the Rental Unit regardless.
Therefore, the Officer finds that the Tenants are responsible for 50% of the painting cost. This claim is allowed in part for a total amount of $1,150.00.
[55] The Application is allowed, in part. The Landlords are entitled to retain the security deposit, with interest and the Landlords are entitled to additional compensation. The Officer’s calculations are as follows:
Item Amount Total compensation for allowed claims $3,134.96 Less security deposit & interest ($1,761.79) Amount owed to the Landlords $1,373.17
IT IS THEREFORE ORDERED THAT
I. The Landlords shall retain the full amount of the security deposit and interest.
II. The Tenants shall pay the Landlords $1,373.17 by October 3, 2024.
DATED at Charlottetown, Prince Edward Island, this 13th day of September, 2024.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer
NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals 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.