On October 28, 2019 the Commission
received a Notice of Appeal from a lessor, Weiwei (Alice) Yu (the
"Appellant"), requesting an appeal of Order LD19-471 dated October 25, 2019
issued by the Director of Residential Rental Property (the "Director").
By way of background, on October 7, 2019 a lessee, Courtney Picard (the
"Respondent"), filed with the Director a Form 6 - Application by Lessee to
Set Aside Notice of Termination to which was attached a Form 4 - Notice of
Termination by Lessor of Rental Agreement dated September 20, 2019 (the
"Notice of Termination") signed by the Appellant.
The reason cited on the Notice of Termination was that:
"A purchaser wants possession
of the premises for occupation by himself and his family: (s.15(1.1) of the
The matter was heard by the Director
on October 23, 2019 and in Order LD19-471 the Director ordered:
"IT IS THEREFORE
The lessee's Application by Lessee to Set Aside Notice of
Termination (Form 6) dated October 7, 2019 is allowed and the rental
agreement shall continue to be in full force and effect."
The Commission heard the appeal on
November 7, 2019. The Appellant
was present, along with her legal counsel Geoff Gibson ("Mr. Gibson").
Zuquan Huang ("Mr. Huang") and Limin Wei ("Mr. Wei") testified for
the Appellant. The Respondent
was also present.
Mr. Wei spoke to his November 4,
2019 signed statement (Exhibit E-10).
He also spoke to his September 23, 2019 affidavit (Exhibit E-2).
He explained that he and his wife are purchasing the two unit duplex
located at 35-39 Rankin Court Charlottetown.
They would live in one unit while their 20 year old son would live in
the other unit of the duplex.
They and their son currently live in an apartment.
Mr. Huang is a real estate agent
involved in the pending sale of 35-39 Rankin Court.
He testified that the closing date has been extended to provide
sufficient notice to the Respondent.
He testified that he served the Respondent with the Form 4 Notice on
September 20, 2019 and then served her with the Affidavit on September 23,
2019. He did not realize at the
time that the Notice and the Affidavit had to be served together.
He stated that the bank required vacant possession in order to
approve the mortgage.
The Respondent questioned why Mr.
Wei, his wife and son could not share the single already vacant three
bedroom unit, given that they were currently sharing an apartment.
In his submissions, Mr. Gibson
acknowledged that the serving of the Form 4 Notice on September 20, 2019 and
the supporting Affidavit three days later did not follow the requirements
set out in subsection 15.(1.1) of the Act.
However, he submitted that there was no real prejudice to this
technical breach and submitted that the appropriate remedy would be to
extend the termination date by an additional three days.
The Commission denies the appeal and
confirms Director's Order LD19-471.
Subsection 15.(1.1) of the Act
Notice of termination where
purchaser seeks vacant possession
the lessor is the owner of residential premises comprising
not more than two rental units;
the lessor enters into an agreement of sale of the
residential premises to a purchaser; and
(c) the purchaser has sworn
an affidavit that he wishes to have possession of the premises for
occupation by himself, his spouse, children or parents or the parents of his
the lessor may serve the
lessee with a notice of termination to be effective not less than two months
after it is served and the notice shall
be accompanied by a copy of the affidavit referred to in clause (c).
The testimony of Mr. Wei before the
Commission supports his affidavit.
The testimony of Mr. Huang supports the agreement of purchase and
However, the Form 4 Notice was not
accompanied by the required supporting affidavit.
While the serving of the affidavit
three days after the service of the Form 4 Notice may be viewed by some as a
mere technical breach, this must be examined within the context of
subsection 15.(1.1). Subsection
15.(1.1) serves to terminate a rental agreement with a minimum of two months
notice, not for any fault or wrongdoing of a lessee, but rather to provide a
purchaser with vacant possession.
Effectively the rights of a lessee
are diminished by the right of a third party to obtain vacant possession
upon purchase of the residential premises from the lessor.
In these circumstances it is only reasonable to give full weight to
the words "...the notice shall be
accompanied by a copy of the affidavit
referred to in clause (c)."
Accordingly, the Commission finds
that the Notice requirements set out in subsection 15.(1.1) of the
Act have not been met and accordingly, the
Commission confirms the outcome of Director's Order LD19-471.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
1. The appeal
Director's Order LD19-471
at Charlottetown, Prince Edward Island,
this 14th day of
John Broderick, Commissioner
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.