On April 13, 2018 the Commission received a Notice of
Appeal from a lessor, Jim Bliss (the "Appellant") requesting an appeal of
Order LD18-115 dated April 5, 2018 issued by the Director of Residential
Rental Property (the "Director").
By way of background, on December 12, 2017 a lessee,
Vanessa Roberts (the "Respondent") filed with the Director a Form 2 -
Application for Enforcement of Statutory or Other Conditions of Rental
Agreement seeking a finding that the security deposit, or part thereof,
should be forfeited or returned and that an order that an amount found to be
owed be paid.
On December 21, 2017 the Appellant filed with the
Director a Form 8 - Notice of Intention to Retain Security Deposit dated
December 15, 2017. On February
22, 2018 the Respondent filed with the Director a Form 9 - Application re
Determination of Security Deposit dated the same date.
On March 12, 2018 the Appellant paid to the Director, in trust, the
security deposit funds in the amount of $134.79.
The matter was heard by the Director on March 29, 2018
and in Order LD18-115 the Director ordered:
"IT IS THEREFORE ORDERED THAT
The lessee shall receive the full balance of the
contested security deposit funds in the amount of $134.79.
Payment to the lessee shall be made after the
appeal period has expired."
The Commission heard the appeal on May 4, 2018.
Both the Appellant and Respondent were present.
The Appellant testified in detail concerning the
matters relating to the contested security deposit (change of locks and
repair to kitchen cabinet doors).
The Appellant also testified in detail to matters which were
extraneous to the contested security deposit.
The Respondent also testified in detail to the
matters related to the contested security deposit as well as matters
relating to the tenancy which were extraneous to the contested security
deposit. The Respondent requested the
return of the entire security deposit of $445.00.
The appeal is denied for the reasons that follow.
The Respondent had paid a security deposit of $445.00
and the accrued interest on that payment amounts to $4.95 for a total of
$449.95. The Appellant had
previously provided the Respondent with a cheque for $315.16.
However, the Respondent for unknown reasons did not cash said cheque
and in fact returned said cheque to the Appellant.
Regardless of the outcome of this appeal, the sum of
$315.16 is not in dispute and the Respondent is entitled to receive this
amount from the Appellant.
What is in dispute is the sum of $134.79 which the
Appellant claims for the purchase of two new locks, installation of those
locks and repair of kitchen cabinets where the door hinges attach.
The Appellant submits that the new locks were required because the
Respondent did not return all the keys she was initially provided with.
With respect to the locks, it would appear to be the
practice of some lessors to routinely replace locks upon the end of a
tenancy while other lessors would not.
In the present appeal not all keys that were provided to the
Respondent were returned, but it does appear that she returned all the keys
in her possession. While the Appellant did replace the locks, he was not
required to do so and accordingly the Commission will not award a claim for
the replacement of the locks plus installation.
With respect to the damage to the kitchen cabinets, the
evidence is mixed. The Appellant
has provided evidence that the damage was due to excessive force.
The Respondent has provided evidence that the damage occurred as a
result of normal wear and tear.
The Appellant submitted that the cabinets were installed in 2014.
The evidence indicates that the Appellant and Respondent entered into
a rental agreement on October 31, 2016 and thus the tenancy commenced at
that time and lasted for thirteen months.
From the photographs provided of the door hinge area,
it appears the screw holes into the cabinet sides crumbled around the screws
thus causing the screws to become very loose and fall out.
This might have been caused by excessive force, normal wear and tear,
defects in materials, or a defect in assembly.
The photographs suggest that the cabinet sides were made of an
engineered wood product material.
The Appellant described this as "thermaform" while the Respondent
described this as "MDF". The
Appellant has advised that the repairs were made using plastic cement.
While there may be different plausible theories as to
the cause of the damage to the kitchen cabinets, the onus is on the
Appellant as lessor to establish who was responsible for the damage.
There is no indication that the Respondent damaged other parts or
fixtures within the residential premises.
The Commission finds that the Appellant has not satisfied the onus of
establishing this claim.
Accordingly, the Commission denies the appeal,
confirms Director-s Order LD18-115 and orders that the disputed security
deposit in the amount of $134.79 shall be paid to the Respondent.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
The appeal is
Order LD18-115 is confirmed.
The Respondent (lessee) shall receive the
full balance of the contested security deposit funds in the amount of
Payment to the Respondent (lessee) shall be
made after the appeal period has expired.
The Appellant (lessor) shall pay to the
Respondent (lessee) the amount of $315.16, being the uncontested
security deposit funds.
at Charlottetown, Prince Edward Island,
this 7th day of
John Broderick, Commissioner
M. Douglas Clow, Vice-Chair
Jean Tingley, Commissioner
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.