LD24-155

Tenant application · eviction. Outcome: granted. A. The tenancy agreement between the parties shall terminate effective 5:00 p.m. on May 31, 2024. The Tenant shall vacate the Rental Unit by this time and date. B. A certified copy of this Order may be filed in the Supreme Court and enforced by Sheriff Services as permitted by th

Linked prior order: LR23-66

Order text

Orders of the Director of Residential Tenancy
Docket 24-215 and 24-231 May 15, 2024
Introduction
[1] On April 19, 2024, the Tenant filed a Tenant Application to Determine Dispute (Form 2(A)) (the “Application”) with the Residential Tenancy Office (the “Rental Office”). The Application was filed pursuant to the Residential Tenancy Act (the “Act”) to dispute an Eviction Notice (Form 4(A)) dated April 10, 2024, effective May 31, 2024, (the “Notice”). The Notice was given to the Tenant for the following reasons:
You are repeatedly late in paying rent; and You or someone you have allowed on the property have disturbed, endangered others or put the landlord’s property at significant risk.
[2] On April 10, 2024, the Notice was posted to the door of the Rental Unit and emailed to the Tenant.
[3] On April 22, 2024, the Tenant electronically served the Application to the Landlord.
[4] On April 22, 2024, the Rental Office e-mailed and mailed the Notice of Hearing to the parties.
[5] On May 1, 2024, the Evidence Package (“EP”) was e-mailed to the parties. The EP contains 67- pages of documents submitted by the Landlord and copies of the Notice of Hearing and the Application. No evidence was submitted by the Tenant.
[6] On May 7, 2024, a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Landlord and the Tenant participated in the hearing.
Preliminary Matter
[7] On April 5, 2024, the Tenant filed an application to dispute an Eviction Notice, dated April 1, 2024, effective May 1, 2024. However, the Eviction Notice was not on the proper form (Form 4(A)) and the Landlord was notified the Eviction Notice was not valid. These documents form the basis for
Docket 24-215. As the basis for the application for Docket 24-215 was to dispute an invalid eviction
notice, the Officer will not make a determination on the initial application or the invalid eviction
notice.
Issue to be Decided
i. Does the Tenant have to vacate the Rental Unit due to the Notice?
Summary of the Evidence
[8] In December of 2022, the parties entered into an oral month-to-month tenancy agreement for a room rental and shared common spaces (the “Rental Unit”). Rent is $600.00 due on the 1st day of the month. A security deposit was not required.
Landlord’s Evidence and Submissions
[9] The Landlord submitted into evidence several documents including photographs of the Rental Unit, two written witness statements, and banking documents.
[10] The Landlord stated the Rental Unit is a two-bedroom condo and the Landlord also lives in the Rental Unit. He stated the Tenant has been late paying rent 13 out of the 18 months he has been living in the Rental Unit. He stated he has had to ask the Tenant to pay rent in the past because it was late. He submitted all the e-transfer notices from the Tenant’s rent payments from December 2022 to April 2024 and stated the Tenant paid rent on May 2, 2024, which was also late.

Orders of the Director of Residential Tenancy
Docket 24-215 and 24-231 May 15, 2024
[11] The Landlord stated the Rental Unit is unclean and smells of dirty diapers and urine. He stated he has been required to clean the floor because it smelled of urine. He stated the Tenant does not clean the Rental Unit and the Landlord is often required to empty the trash of dirty diapers and wash the Tenant’s dishes. The Landlord stated he is unsure of the condition of the Tenant’s room as he has not inspected it. The Landlord submitted photographs of some of the shared common spaces into evidence showing: a stove, sink with dishes, cupboards with food items, and some clothing items.
[12] The Landlord stated he submitted two statements into evidence. He testified that one of the statements, dated March 24, 2024, is from a neighbor who shares a wall with the Rental Unit. The neighbour stated she can hear the Tenant’s late-night gaming sessions through the wall. She stated this occurs 2-3 times during the week and the noise is disturbing her.
[13] The Landlord testified the other statement was from a guest of the Landlord who stayed in the Rental Unit during September 2023. The guest indicated the Tenant left dirty dishes, empty beer cans, and clothes all over the Rental Unit. The guest stated he observed the Tenant arguing with neighbours and was loud enough to be heard down the hall and through the walls.
[14] The Landlord stated he does not like conflict. He stated he wears noise cancelling headphones so he does not have to listen to the Tenant’s noise. He stated he had not addressed the noise or uncleanliness issues with the Tenant prior to serving the Notice.
Tenant’s Evidence and Submissions
[15] The Tenant stated he was not notified of any noise complaints or issues with uncleanliness until he received the Notice. He stated his children stay with him on a regular basis and this is why there are diapers in the trash. The Tenant stated he may be “nose blind” to any smells and does not believe he keeps the Rental Unit that dirty. The Tenant stated if he had received a warning from the Landlord about the noise or the uncleanliness he would have corrected his behaviour. He stated he did not believe he was noisy.
[16] The Tenant stated if he was going to be a week or so late with the rent then he would notify the Landlord. He stated he pays the Landlord when he gets paid, which is often not at the beginning of the month. He stated one time he was having financial difficulties and the Landlord had asked the Tenant to pay the rent, which was around the middle of the month.
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:
28. Tenant responsible for ordinary cleanliness
(3) A tenant is responsible for (a) ordinary cleanliness of the rental unit and all areas of the residential property used exclusively by the tenant, except to the extent that the tenancy agreement expressly requires the landlord to clean it.
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:

Orders of the Director of Residential Tenancy
Docket 24-215 and 24-231 May 15, 2024 (b) you are 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.
First Reason - Uncleanliness
[18] The statement from the Landlord’s guest indicated the Tenant left dirty dishes, empty beer cans, and clothes all over the Rental Unit. However, the Landlord’s guest did not participate in the hearing to provide affirmed testimony about the cleanliness issues to provide further context. The Officer also notes that the guest stayed in the Rental Unit in September 2023 and the Notice was not served until April 2024. If the Landlord was concerned about the condition of the Rental Unit in September 2023, the Landlord should have addressed the alleged behaviour with the Tenant at that time.
[19] The Officer has reviewed the photographs submitted by the Landlord and finds the photographs do not establish the Rental Unit to be below the standard of “ordinarily clean.” Although the Rental Unit may not meet the Landlord’s standard of cleanliness, the Landlord’s standard is not the applicable benchmark or standard. Regarding the alleged smell in the Rental Unit, the Officer finds the parties provided conflicting evidence and the Officer is unable to make a finding on this issue based on the evidence presented.
[20] The Officer notes the Tenant’s alleged behaviour would correspond more closely to a breach of a material term of the tenancy agreement (clause 61.(1)(h)) as a basis for termination. However, even if the Landlord did select clause 61.(1)(h) on the Notice, as a preliminary step the Landlord was required to first provide written notice/warning to the Tenant. The evidence suggests the Landlord did not provide a written warning regarding this behaviour. The Officer finds that the first reason does not justify a termination of the tenancy agreement.
Second Reason - Noise Complaint
[21] The Landlord submitted a statement into evidence from a neighbor who stated the Tenant’s latenight gaming sessions are disturbing her. The Officer notes that the neighbor did not participate in the hearing to provide affirmed testimony regarding the noise issues to provide further context. The Officer finds that such testimony would have been of assistance for the determination of this matter.
Regarding the statement of the guest from September 2023, as noted above, if the Landlord was concerned about the Tenant’s behaviour at that time, it should have been addressed with the Tenant prior to six months after the alleged incident.
[22] The Landlord stated he wears noise cancelling headphones so he does not have to listen to the Tenant’s noise. The evidence establishes the Landlord did not provide warnings to the Tenant regarding the noise issues. The Tenant stated he did not believe he was noisy but he would have corrected his behaviour if warned by the Landlord. In these circumstances, the Officer is not satisfied the Tenant has breached the Act. The Officer finds that the second reason does not justify a termination of the tenancy agreement.
Third Reason - Repeatedly late in paying rent
[23] The Landlord stated the Tenant has been late in paying rent 13 out of the 18 months that he has been living in the Rental Unit. The Tenant stated he often does not get paid until after the first of the month and he pays the rent after he gets paid.

Orders of the Director of Residential Tenancy
Docket 24-215 and 24-231 May 15, 2024
[24] In Order LR23-66 the Island Regulatory and Appeals Commission (“the Commission”) stated:
“The Commission notes that the Act provides that a Landlord may, under section 61(1)(b), evict a tenant who is repeatedly late paying rent. It is therefore in the Landlord’s discretion whether to evict and so long as the Landlord proves that the Tenant was repeatedly late in paying rent, and that the Notice was served, then the eviction will stand. While a landlord may seemingly tolerate late payment for some time, the Act permits an eviction based on repeated late payment of rent and no warning is required.”
[25] The Officer has reviewed the Landlord’s submitted banking documents and the testimony of the parties and finds the Landlord has provided sufficient evidence to establish that the Tenant has breached clause 61.(1)(b) of the Act. The Officer finds the Tenant has been repeatedly late in paying rent 13 times between December 2022 and May 2024 and the third reason does justify a termination of the tenancy agreement.
Conclusion
[26] The Notice is valid and the Application is denied.
[27] The tenancy agreement between the parties shall terminate effective 5:00 p.m. on May 31, 2024.
The Tenant shall vacate the Rental Unit by this time and date.
[28] This Order will be served to the parties by e-mail.
IT IS THEREFORE ORDERED THAT
A. The tenancy agreement between the parties shall terminate effective 5:00 p.m. on May 31,
2024. The Tenant shall vacate the Rental Unit by this time and date.
B. A certified copy of this Order may be filed in the Supreme Court and enforced by Sheriff Services as permitted by the Act.
DATED at Charlottetown, Prince Edward Island, this 15th day of May, 2024.
(sgd.) Mitchell King Mitchell King Residential Tenancy Officer
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.