On February 12, 2019 the Commission
received a Notice of Appeal from a lessee, Robert Livingston (the
"Appellant"), requesting an appeal of Order LD19-049 dated February 6, 2019
issued by the Director of Residential Rental Property (the "Director").
By way of background, on January 21,
2019 the Appellant filed with the Director a Form 6 - Application by Lessee
to Set Aside Notice of Termination.
Attached to the Form 6 was a Form 4 - Notice of Termination by Lessor
of Rental Agreement dated January 11, 2019 signed by Bruce Allen ("Mr.
Allen") of Diversified Property & Management Services on behalf of the
lessor, Bosco Enterprises Ltd. (the "Respondent").
The matter was heard by the Director
on February 1, 2019 and in Order 19-049 the Director ordered:
"IT IS THEREFORE
1. The lessee's
application to set aside the Notice of Termination (Form 6) dated January
21, 2019 is dismissed.
2. The Notice
of Termination dated January 11, 2019 for effect January 31, 2019 is valid
however the effective date is varied to February 15, 2019 at 4 pm.
The rental agreement is terminated effective February 15,
2019 at 4 pm and the lessee shall vacate the residential premises by 4 pm on
February 15, 2019.
the lessee fails to vacate the premises in accordance with Paragraph 3 of
this Order, the Sheriff is directed to put the lessor in possession of the
residential premises on Tuesday, February 19, 2019 at 12:00 noon."
The Commission heard the appeal on
February 22, 2019. The Appellant
was present. Mr. Allen testified
on behalf of the Respondent.
The Appellant testified that in
November 2017 a pipe broke in the unit above him causing water damage within
his apartment and resulting in a loss of some of his personal items.
He told the Commission that he should be compensated for his loss.
He acknowledged that he has not paid rent for the months of January
and February 2019.
The Appellant testified that he is
willing to pay rent for the month of February 2019.
He stated that he refuses to pay the rent for January 2019 "on
principal" as he sees January's rent as compensation for his loss of more
than one year earlier.
In response to questioning from the
Commission, the Appellant acknowledged that he is now aware that a tenant
cannot withhold rent.
Mr. Allen testified that the
Appellant has been a tenant for approximately four years.
Mr. Allen reviewed the Respondent's Client Revenue Detail Report
(Exhibit E-8) and confirmed that rent had not been paid for January and
The appeal is denied and Director's
Order LD19-049 is confirmed, subject to a variance in the date the Sheriff
is directed to put the Respondent in possession of the residential premises.
It is clear from the evidence that
rent has not been paid for January and February 2019.
The Appellant has indicated a willingness to pay the February rent if
he is allowed to stay. However,
the Appellant refuses to pay the January rent "on principal" even though he
is now aware that a tenant cannot withhold rent.
Subsections 13(1) and 13.(2) of the
Rental of Residential Property Act(the
"Act") set out the process a lessor
may follow where a lessee fails to pay rent:
13. Failure to pay rent
Where a lessee fails to pay rent in accordance with the
rental agreement, the lessor may, on any day following the day the rent was
due, serve the lessee with a notice of termination to be effective not
earlier than twenty days after the date it is served.
Payment of rent after notice
(2) A lessee may, within ten
days of being served with a notice of termination under subsection (1)
deliver to the lessor all the rent due as of that date, whereupon the notice
shall be void.
The Respondent served a January 11,
2019 Form 4 Notice of Termination by Lessor of Rental Agreement on the
Appellant, noting that rent due on January 1, 2019 was not paid.
The Appellant did not pay the rent owing within ten days of receiving
the Form 4.
A lessee must pay their rent.
If a lessee believes that a lessor owes money or compensation, the
lessee is still obligated to continue to pay the rent and should contact the
Director to determine whether a remedy may be sought under the
A lessee is not permitted to
Section 6.10 of the
Act authorizes a delivery of possession:
10. Delivery of Possession
Where notice of termination
has been given in accordance with this Act, and all remedies in relation
thereto have been exhausted, the lessee shall deliver up possession of the
residential premises. 1988,c.58,s.6.
The Commission also notes and adopts
the following reasons set out by the Director in Order LD19-049:
The Acting Director notes that
Act gives a lessee 10 days after the receipt of a Notice of Termination
(Form 4) to pay the rent and invalidate the Notice of Termination.
If the lessee misses the deadline, as the lessee did, then
the rental agreement is terminated.
The Acting Director has no jurisdiction to compel a lessor
to accept payment after the deadline or to re-instate the rental agreement.
The Acting Director notes that the lessee filed an
Application to Set Aside the Notice of Termination (Form 6) so that he could
explain his story as to why he did not pay his rent for January 2019.
Further, the Acting Director notes that the lessee was told
by this Office to pay his rent on January 21, 2019 when he came to file his
Form 6 Application.
The Acting Director notes that the lessee may be in the wrong
forum as the lessee thought that we had jurisdiction over insurance disputes
between the parties and we do not.
Unfortunately the lessee is now in a position where he must
Accordingly, the Commission confirms
Director's Order LD19-049 subject to a variation in the date of possession.
The new date of possession is Thursday, February 28, 2019 at 12:00
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
The appeal is denied.
Order LD19-049 is hereby confirmed subject to the following variation.
Possession of the residential premises shall be surrendered to
the Respondent lessor and the Sheriff is directed to put the Respondent
lessor in possession of the residential premises on Thursday, February
28, 2019 at 12:00 noon.
at Charlottetown, Prince Edward Island,
this 25th 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.