LD24-288

Landlord application · other. Outcome: partial. I. The Landlord shall pay the Tenants $3,831.19 by October 1, 2024

Linked prior order: LR23-69

Order text

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024
INTRODUCTION
[1] The applicable legislation is the Residential Tenancy Act (the “Act”).
[2] On May 22, 2024 the Tenants filed a Form 2 (A) Tenant Application to Determine Dispute (the “Tenants’ Application”) with the Residential Tenancy Office (the “Rental Office”) seeking a monetary
order for double the security deposit, in the amount of $4,800.00 plus interest on the principal amount. The Tenants’ Application was emailed to the Landlord.
[3] On June 18, 2024 the Rental Office emailed and mailed the parties notice of a teleconference hearing for determination of the Tenants’ Application.
[4] On July 12, 2024 the Landlord filed a Form 2 (B) Landlord Application to Determine Dispute (the “Landlord’s Application”) with the Rental Office seeking compensation exceeding the security deposit, in the total amount of $6,869.20. The Landlord’s Application was emailed to the Tenants.
[5] In this decision, the Tenants’ Application and the Landlord’s Application are collectively referred to as the “Applications”.
[6] On July 15, 2024 the Rental Office emailed a new notice of a teleconference hearing for determination of the Applications.
[7] On August 2, 2024 the Rental Office emailed the parties the evidence package (“EP”).
[8] On August 8, 2024 at 9:00 a.m. a teleconference hearing was held before the Residential Tenancy Officer (the “Officer”). Three of the Tenants participated: L.S., (with his representative P.S.), C.D., and A.M. The fourth tenant, O.L., was represented by L.S., C.D., and A.M. The Landlord also participated at the hearing.
ISSUES
i. Must the Landlord pay the Tenants double the security deposit?
ii. Has the Landlord established a valid claim to be offset against the Tenants’ claim?
SUMMARY OF EVIDENCE
[9] On July 17, 2023 the parties entered into a written, fixed-term tenancy agreement for the period of September 1, 2023 to August 31, 2024. Rent was $2,400.00 due on the first day of the month. The security deposit was $2,400.00 and e-transferred to the Landlord on July 17, 2023.
[10] The parties mutually agreed to end the tenancy on April 30, 2024, and the Tenants vacated the Rental Unit.
TENANTS’ EVIDENCE AND SUBMISSIONS
[11] The Tenants submitted 12-pages of documents into evidence, including: text messages, written submissions by the Tenants and the Tenants’ family members, and an email from the Rental Office.
The Tenants’ Application
[12] The Tenants stated that they vacated the Rental Unit on April 30, 2024. The Landlord did not return their security deposit, and did not file an application with the Rental Office within 15-days from the end of the tenancy. The Tenants stated that they did not agree to allow the Landlord to retain the security deposit.

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024 The Landlord’s Application
[13] In response to the Landlord’s testimony (see below), the Tenants’ disputed that they caused the damage alleged by the Landlord.
[14] The Tenants stated that they did cause the indent to the gutter, however, the gutter is fully functional and should not need to be fully replaced. The Tenants stated that heavy snow could have caused damage as well and that they should not be responsible for the entire bill.
[15] The Tenants stated that the damage to the garage door was not caused by them, but by the snowplow. The Tenant stated that they did not report it to the Landlord because the damage looked minor as it was just a small indent.
[16] The Tenants stated that the damage to the aluminum garage door frame is minimal and likely caused by the snowplow incident. The Tenants denied returning to fix the door frame.
[17] The Tenants stated that repainting the whole Rental Unit is unnecessary. The only damage was a small half-inch spec on the wall near the main bedroom, which happened during move in. The Tenants stated that any small holes are normal wear and tear.
[18] The Tenants did not dispute damaging the lawn after a vehicle got stuck.
[19] The Tenants stated that the damage to the dishwasher and the box pillar was pre-existing. The Tenants stated that they did not cause the alleged damage.
[20] The Tenants stated that the damage to the trim and door jambs are normal wear and tear. The damage does not require a full replacement.
LANDLORD’S EVIDENCE AND SUBMISSIONS
[21] The Landlord submitted 57-pages of documents into evidence including: emails, photographs of the Rental Unit, invoices, text messages, and receipts.
The Tenants’ Application
[22] The Landlord stated that he did not return the security deposit and did not file an application with the Rental Office to make a claim against the security deposit.
The Landlord’s Application
[23] The Landlord stated that he is seeking $6,869.20 in compensation for damage to the Rental Unit.
[24] The Landlord stated that that there was a walkthrough at the beginning of the tenancy, however, no inspection report was complete. The Landlord stated that he inspected the Rental Unit at the end of the tenancy alone and witnessed significant damage to the Rental Unit. No inspection report was complete at the end of the tenancy.
[25] The Landlord stated that the Rental Unit’s gutter was dented and damaged. The Landlord stated that neighbouring tenants informed him that they witnessed the Tenants on the roof on numerous occasions. The Landlord stated that the Tenants have no reason to ever be on the roof. The Landlord submitted a photograph of the dented gutter (30-EP). The Landlord stated that the professional who provided the estimate informed him that the entire 72-foot gutter must be replaced. The Landlord submitted an estimate into evidence in the amount of $1,008.00, plus HST (29-EP).

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024
[26] The Landlord stated that the garage door has a dent (52-EP). The Landlord stated that the professional provided him with an estimate of $1,800.00 to repair the garage door (53-EP). The Landlord stated that his snow removal person did not mention anything about damaging the door.
[27] The Landlord stated that the aluminum frame was damaged with the garage door. The Landlord stated that someone went to the Rental Unit without his permission and attempted to fix it. The Landlord stated that the work was unacceptable (72-EP). The Landlord stated that it will cost $517.00 total to fix it (73-EP).
[28] The Landlord stated that the Rental Unit needed a full paint job. The walls and ceiling had marks and splash marks. The Landlord stated that the Rental Unit was freshly painted before the Tenants moved into the Rental Unit. The Landlord stated that this is not normal wear and tear after 8- months. The Landlord stated that the paint and labour would cost $950.00 plus HST (44-EP).
[29] The Landlord stated that the Tenants caused damage to the lawn. The Landlord stated that the Tenants admitted to causing the damage in a text message (55-EP). The Landlord stated that he did not submit the $500.00 invoice into evidence but that was the cost to fix the lawn.
[30] The Landlord stated that the baseboards were ruined from excess water. The Landlord submitted photographs (69-71-EP). The Landlord stated that he estimates it will cost $800.00 to repair the damage, between labour and materials.
[31] The Landlord stated that the dishwasher leg was bent and damaged (48-EP). The Landlord estimated the damage at $200.00 to be repaired.
[32] The Landlord stated that the box pillar on the peninsular had significant water damage (50-EP).
The Landlord stated that the estimated cost to repair is $500.00.
[33] The Landlord stated that the trim damage was estimated at $300.00.
ANALYSIS
Issue i. Must the Landlord pay the Tenants double the security deposit?
[34] The Tenants’ Application is made in accordance with section 75 of the Act and seeks a monetary
order for double the security deposit, pursuant to subsection 40(4) of the Act. The law states:
59. Application respecting contravention
Where a landlord contravenes the obligations set out in sections 22 to 24 and 26 to 29, a material term of the tenancy agreement or a statutory condition set out in Part 2, the tenant may make an application to the Director under section 75 for an order specified under subsection 85(1). [emphasis added]
40. Return of security deposit
(1). Except as provided in subsection (2) or (3), within 15 days after the date the tenancy ends or is assigned, the landlord shall either (a) issue payment, as provided in subsection (5), of any security deposit to the tenant with interest calculated in accordance with the regulations; or (b) make an application to the Director under section 75 claiming against the security deposit. [emphasis added] Landlord may retain amount from security deposit (2). A landlord may retain from a security deposit an amount that

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024 (a) the Director has previously ordered the tenant to pay to the landlord; and (b) remains unpaid at the end of the tenancy.
Retention by landlord, other circumstances (3). A landlord may retain an amount from a security deposit if (a) at the end of the tenancy, the tenant agrees in writing that the landlord may retain the amount to pay a liability or obligation of the tenant; or (b) after the end of the tenancy, the Director orders that the landlord may retain the amount.
Consequences of non-compliance (4). Where a landlord does not comply with this section, the landlord (a) shall not make a claim against the security deposit; and (b) shall pay the tenant double the amount of the security deposit.
[35] In Order LR23-69, the Island Regulatory and Appeals Commission (the “Commission”) made the following comment as it relates to section 40 of the Act:
“Subsections 40(2) and (3) are the only exceptions to the provisions contained in section
40. The Commission finds that there is no exemption from the rigours of section 40…”
[36] More recently, in Order LR24-10 the Commission made such comments as it relates to section 40 and the consequences of non-compliance:
“Section 40 of the Act imposes strict requirements on a landlord and failure to meet those requirements incurs a very substantial penalty. The Commission notes that there is no provision in the Act to allow the Director or the Commission to temper or waive the provisions set out in section 40 of the Act. The Landlords feel that the application of section 40 to them, in these factual circumstances, is unjust. However, as the Act does not provide the Director or the Commission any discretion to waive the provisions of section 40, the Commission finds that there is no error in Order LD23-617 and accordingly the Commission dismisses the appeal and confirms Order LD23-617.”
[37] In this case, it is undisputed that the Tenants vacated the Rental Unit on April 30, 2024 and the tenancy ended by mutual agreement. The Landlord had 15-days to either return the security deposit plus interest to the Tenants or file a Form 2 (B) Landlord Application to Determine Dispute with the Rental Office. The evidence establishes that the Landlord did neither. The Tenants did not agree to allow the Landlord to retain the security deposit and there are no outstanding monetary orders from the Rental Office against the Tenants.
[38] The Officer finds that the Landlord did not comply with subsection 40(1), triggering subsection 40(4) of the Act. Therefore, the Officer finds that the Landlord shall pay the Tenants double the security deposit, plus interest on the principal amount paid. The Tenants’ Application is allowed.
Issue ii. Has the Landlord established a valid claim to be offset against the Tenants’ claim?
[39] The Landlord’s Application is made in accordance with section 75 of the Act, seeking compensation in the amount of $6,869.20. The Landlord bears the onus of proving his claims on a balance of probabilities. This means that a decision-maker must be satisfied there is sufficiently clear and convincing evidence to support his claims.
[40] Subsection 39(2) of the Act states:

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024
39. Obligations on vacating
(2) When a tenant vacates a rental unit, the tenant shall (a) leave the rental unit reasonably clean and undamaged, except for reasonable wear and tear; and (b) give the landlord all the keys or other means of access that are in the possession or control of the tenant and that allow access to and within the residential property.
THE CLAIMS
1. Replacing the gutter in the amount of $1,159.20
[41] The Landlord alleges that the Tenants damaged the gutter while climbing to the Rental Unit’s roof.
The Landlord submitted a photograph of the indented gutter, along with an estimated amount of $1,159.20. The Landlord stated that the professional advised him that the entire 72-foot gutter needed to be replaced. The Tenants admitted to denting the gutter, however, disputed the cost and the necessity of replacing the entire 72-foot gutter.
[42] The parties provided undisputed evidence regarding the cause of the indent. The Officer finds that the indent to the gutter would be considered undue damage to the Rental Unit. However, the parties disputed the necessity of replacing the entire gutter and the cost associated with the full replacement. The Landlord did not provide any direct or objective evidence from a professional, which could detail the reasons that would require the entire gutter to be replaced because of an indent. The Officer finds that absent of this evidence, the Landlord has not proven that the Tenants are responsible for the full amount of the cost.
[43] The Officer apportions 15% of the total cost to the Tenants for the undue damage caused when indenting the gutter. The claim is allowed in the amount of $173.88.
2. The garage door in the amount of $1,800.00
[44] The Officer finds that the Landlord has not provided sufficient evidence to prove that the Tenants caused undue damage to the garage door. The Tenants stated that the damage was minimal, but caused by a snowplow. The Officer notes that the Tenants should have reported the damage once they became aware of it. Despite this, the Officer finds that there is no evidence to prove that the Tenants caused the damage to the garage door. This claim is denied.
3. Aluminum door frame in the amount of $517.50
[45] For the same reasons found in paragraph [44], the Officer finds that this claim is denied.
4. Painting in the amount of $1,092.50
[46] The Landlord is required to complete an inspection report at the beginning and at the end of the tenancy.1 In this case, the Landlord did not complete an inspection report and no such report was submitted into evidence. In addition to the inspection reports, the best evidence for these types of applications are time stamped before and after photographs of the Rental Unit.
[47] The Officer finds that the Landlord submitted some photographs after the tenancy ended showing some marks, breaks, and holes in the walls. The Officer finds that the photographic evidence shows that the damage is beyond normal wear and tear. However, without photographs of the condition of the walls at the start of the tenancy, the Officer cannot determine the amount of damage that may have been caused by the Tenants.
1 Subsections 18(1), (3) and 38(1), (3) of the Act

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024
[48] The Officer finds that based on the evidence submitted and that the tenancy lasted approximately 8-months, the Tenants are responsible for 33% of the painting cost. The claim is allowed in the amount of $360.53.
5. Lawn Damage in the amount of $500.00
[49] The parties did not dispute the cause of the lawn damage or the cost associated with the repair of the lawn. The Officer finds that the evidence established undue damage to the Rental Unit’s lawn caused by the Tenants. The claim is allowed in the amount of $500.00.
6. Baseboards in the amount of $800.00
[50] The parties disputed the cause for the damage and the cost associated with repairing the baseboards. In the absence of inspection reports and before photographs, the Officer finds that the Landlord has not provided sufficient evidence to establish that the Tenants caused the damage to the baseboards. This claim is denied.
7. Dishwasher leg in the amount of $200.00 and peninsula in the amount of $500.00
[51] The parties disputed the cause for the damage. The Tenants stated that the damage was preexisting. The Officer finds that in the absence of inspection reports and before photographs, the Landlord has not provided sufficient evidence to establish that the Tenants caused the damage.
These claims are denied.
8. Trim and door jambs in the amount of $300.00
[52] The parties disputed the cause for the damage. The Tenants stated that it was minor damage and normal wear and tear. The Officer finds that in the absence of inspection reports and before photographs, the Landlord has not provided sufficient evidence to establish that the Tenants caused the damage. These claims are denied.
[53] The Landlord’s Application is allowed in part in the total amount of $1,034.41. The Landlord shall offset this amount against the Tenants’ claim.
CONCLUSION
[54] The Tenants’ Application is allowed.
[55] The Landlord’s Application is allowed, in part.
[56] The Officer’s calculations are as follows:
Item Amount Security Deposit $2,400.00 Interest $65.60 Security Deposit (Double Awarded) $2,400.00 Landlord’s compensation offset ($1,034.41) Total Compensation Awarded to Tenants $3,831.19

Orders of the Director of Residential Tenancy Dockets 24-366 and 24-439 September 9, 2024
IT IS THEREFORE ORDERED THAT
I. The Landlord shall pay the Tenants $3,831.19 by October 1, 2024
DATED at Charlottetown, Prince Edward Island, this 9th day of September, 2024.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer
NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission by serving a Notice of Appeal with the Commission and every party to this Order within 20 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.