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IN THE MATTER
of an appeal under Section
25 of the
Rental of Residential Property Act filed by
Don Proude and Marsha Proud against Order LD16-236 dated July 29,
2016 issued by
the Director of Residential Rental Property.
BEFORE THE COMMISSION
on Wednesday, the
14th day of December, 2016.
John Broderick, Commissioner
Ferne MacPhail, Commissioner
Jean Tingley, Commissioner
On August 22, 2016 the Commission
received a Notice of Appeal from two lessors, Don and Marsha Proude (the
"Appellants"), requesting an appeal of Order LD16-236 dated July 29, 2016
issued by the Director of Residential Rental Property (the "Director").
By way of background, on October 27,
2015 two lessees, Glen and Marla Swan (the "Respondents") filed a Form 9 -
Application re Determination of Security Deposit to which was attached a
Form 8 - Notice of Intention to Retain Security Deposit signed by one of the
Appellants, Marsha Proude ("Mrs. Proude").
The matter was heard by the Director
on June 13, 2016 and in Order LD16-236 the Director ordered:
"IT IS THEREFORE
1. The lessors
shall apply the sum of $463.76 retained by the lessors from the lessee's
security deposit and interest to the rent owing claim made by the lessors
determined in Order LD16-237."
The Commission heard the appeal on
December 12, 2016. The
Appellants were present. Glen
Swan ("Mr. Swan") was present representing the Respondents.
testified that they had to dispose of two truckloads of garbage representing
items left in the basement and the backyard.
The Respondents noted that the premises were rented to the
Respondents as a non-smoking unit and testified that there was a strong
smell of smoke throughout the premises.
Even after painting the smell of cigarette smoke was strong and the
Respondents had to use a "scent bomb" to remove the smell.
Mr. Swan told
the Commission that he could not understand why a bathtub would have to be
replaced because of cigarette smoke. He acknowledged smoking in the attached garage and very occasionally
in the rest of the premises. He noted the kitchen appliances were dated and some were in poor condition and
observed that he felt the Appellants were trying to make the Respondents pay
for upgrades. He noted there
were two items left in the back yard - a utility trailer that could be towed
by a lawn tractor and a backyard swing set. He noted the Respondents spent a whole day cleaning the premises.
The Commission allows this appeal
for the reasons below.
While the very large claims for
damage submitted by the Appellants to the Director could not be
substantiated, the Commission finds that some cigarette smoke damage did
occur to the premises and the Appellants did have to haul away a significant
amount of unwanted items left behind in the basement and back yard.
Accordingly, the Commission finds that the entire security deposit
plus interest in the sum of $463.76 shall be retained by the Appellants in
satisfaction for their claim for damages to the premises.
A separate Order dealing with unpaid
rent will be issued the same day as this present Order.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
The appeal is allowed.
The security deposit plus interest in the amount of $463.76 shall be
retained by the Appellants in satisfaction of smoke damage to the
at Charlottetown, Prince Edward Island,
this 14th day of December, 2016.
John Broderick Commissioner
Ferne MacPhail, Commissioner
Jean Tingley, Commisisoner
Sections 26.(2), 26.(3), 26.(4) and
26.(5) of the
Rental of Residential Property Act
provide as follows:
26.(2) A lessor or lessee may, within fifteen
days of the decision of the Commission, appeal to the court on a
question of law only.
(3) The rules of court governing appeals apply
to an appeal under subsection (2).
(4) Where the Commission has confirmed,
reversed or varied an order of the Director and no appeal has been taken
within the time specified in subsection (2), the lessor or lessee may
file the order in the court.
(5) Where an order is filed pursuant to
subsection (4), it may be enforced as if it were an order of the court.
NOTICE: IRAC File Retention
In accordance with the
Commission's Records Retention and Disposition Schedule, the material
contained in the official file regarding this matter will be retained by the
Commission for a period of 2 years.