LD23-441

Tenant application · eviction, repairs, disturbance. Outcome: denied. A. The Application is denied.

Linked prior order: LR22-66

Order text

Orders of the Director of Residential Tenancy
Docket 23-504 September 20, 2023
Introduction
[1] On June 29, 2023 the Tenant filed a Tenant Application to Determine Dispute (Form 2A) (the “Application”) with the Residential Tenancy Office (the “Rental Office”) seeking the following remedies:
To request a determination that my landlord contravened my right to quiet enjoyment, entered the rental unit unlawfully, prohibited and/or restricted access to the rental unit, changed the locks or failed to secure the rental unit, failed to repair or maintain the rental unit, or any other material term of the tenancy agreement;
Return of rent – in the amount of $1,206.00;
That the Landlord evict the neighbouring tenant(s); and Costs.
[2] On September 7, 2023 a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Tenant and her legal counsel attended the hearing. The Landlord had a representative attend the hearing.
Issues to be Decided
i. Did the Landlord contravene the Act or tenancy agreement?
ii. Is the Tenant entitled to a return of rent?
iii. Is the Tenant entitled to costs?
Summary of the Evidence
[3] On December 1, 2020 the Landlord and the Tenant entered into a written month-to-month tenancy agreement for the Residential Property. Rent is $603.00 due on the first day of the month. A security deposit of $500.00 was required and paid.
Tenant’s Evidence and Submissions
[4] The Tenant testified that the neighbouring tenants have harassed and verbally abused her since the Spring of 2021. The Tenant testified that she has a no trespass order in place for the neighbouring tenants. The Tenant testified that the neighbouring tenants have breached her right to quiet enjoyment. The Tenant testified that she informed the representatives for the Landlord on numerous occasions. The Tenant testified that nothing has ever been done. The Tenant submitted into evidence numerous videos, written submissions, timelines, emails, and photographs.
[5] The Tenant testified that the police have been to the Residential Property 9 times since April 2021, the latest being the weekend before the hearing. The Tenant testified that she no longer feels safe in the Residential Property and has been living with a friend regularly due to the escalation of issues with the neighbouring tenants.
[6] The Tenant testified that she has purchased and installed security cameras on the Residential Property and planters to assist in dividing the Residential Property’s driveway for parking. The Tenant testified that she is seeking two months’ rent returned in the amount of $1,206.00 (July 2023 and August 2023). The Tenant testified that she is seeking $400.00 in compensation for the security cameras and $400.00 in compensation for the planters. The Tenant testified that she also wants the Landlord to evict the other tenants for breaching her right to quiet enjoyment.

Orders of the Director of Residential Tenancy

[7] The Tenant’s legal counsel argued that the Landlord has failed their duty to take the appropriate steps to ensure the Tenant’s rights under section 22 are protected. The Tenant’s legal counsel argued that the Island Regulatory and Appeals Commission (the “Commission”) in LR22-66 awarded a tenant a return of rent because of the landlord’s failure to advise and keep the tenant up to date regarding the tenant’s complaints. The Tenant’s legal counsel admitted that LR22-66 was determined under the former Act, but that the legal analysis ought not change under the Act.
The Tenant’s legal counsel is also seeking partial indemnity costs in the amount of $1,000.00 pursuant to sub-subsection 85.(1)(q) of the Act.
Landlord’s Evidence and Submissions
[8] The representative for the Landlord (the “Representative”) testified that she did speak with the neighbouring tenants regarding the on-going issues and complaints. The Representative testified that she does not want to evict any tenants and that she was hoping the parties would be able to resolve their dispute. The Representative testified that she will have to decide how to proceed with this situation as it does not look like the parties can resolve it themselves.
[9] The Representative testified that the neighbouring tenants have lived there for 20 years. The Representative testified that there have been 4 former tenants living in the Residential Property and there were no complaints. The Representative testified that she has received just as many complaints for the Tenant. The Representative testified that she operates the Residential Property with a fixed budget and provides subsidies for the tenants. Any compensation ordered would negatively impact her budget. The Representative testified that she offered the Tenant another rental property to assist in resolving the dispute. The Representative testified that the Tenant rejected this offer.
Analysis
Regarding issue i: Did the Landlord contravene the Act or tenancy agreement?
[10] The Officer notes that the Tenant alleges that the Landlord failed in their duty to protect the Tenant’s right to quiet enjoyment under section 22 of the Act. Section 22 of the Act states:
Tenant’s right to quiet enjoyment A tenant is entitled to quiet enjoyment of the rental unit including, but not limited to, the right to (a) reasonable privacy;
(b) freedom from unreasonable disturbance;
(c) exclusive possession of the rental unit, subject only to the landlord’s right to enter the rental unit in accordance with section 23; and (d) use of common arears for reasonable and lawful purposes, free from significant interference.
[11] The Officer notes that the Tenant alleges that the neighbours (who are also tenants of the Landlord) have breached the Tenant’s right to quiet enjoyment. The Tenant alleges that after numerous complaints to the Representative nothing has been done. The Tenant is seeking a determination that the Landlord contravened the Act and that the Landlord evict the neighbours.
[12] The Officer finds that the core dispute here is a tenant-to-tenant dispute. The Officer notes that such disputes are outside the jurisdiction of the Rental Office and the Officer’s legislative powers to adjudicate. Notwithstanding, the Officer notes that the Tenant is alleging that the Representative was aware of this dispute and failed to act, resulting in the continued breach of the Tenant’s right to quiet enjoyment.

Orders of the Director of Residential Tenancy

[13] The Officer finds that based on the totality of the evidence and the testimony of the parties that the Representative was aware of this ongoing tenant-to-tenant dispute. The Representative spoke with the parties and hoped that the parties would resolve their dispute. The Officer accepts the Representative’s evidence that she did not want to evict either party and did not want to “choose sides” due to receiving numerous complaints against the Tenant as well as the neighbours.
[14] The Officer finds that the Representative did take action, perhaps not the action the Tenant wanted, but the Representative did take what she determined to be the appropriate steps to deal with the dispute. The Officer notes that such actions included offering the Tenant another rental property, to which the Tenant rejected. The Officer finds that the Landlord did not contravene the Act or the tenancy agreement.
[15] Further, the Officer finds that he does not have the legislative authority to order the Landlord to serve a notice of termination on another party. However, the Officer does suggest that the Landlord take further actions to resolve this tenant-to-tenant dispute as the Officer is concerned with the length of time that this dispute has existed. It is clear on the evidence that these parties cannot live peacefully beside one another and further actions are required of either the parties or the Landlord.
Regarding issue ii: Is the Tenant entitled to a return of rent?
[16] The Tenant is seeking two months return of rent due to the inaction of the Landlord which resulted in a contravention of the Act and/or the tenancy agreement. The Tenant is relying upon subsubsection 85.(1)(i) of the Act which states:
Powers of the Director After hearing an application, the Director may make an order Directing a landlord to pay a tenant an amount as compensation for inconvenience as a result of a contravention of this Act or the tenancy agreement, and authorizing the tenant to offset that amount against future rent.
[17] The Officer notes that the Tenant is seeking $1,206.00 in return of rent (July 2023 and August 2023). The Officer concluded that the Landlord did not contravene the Act and/or the tenancy agreement in issue i. Therefore, the Officer finds that the Tenant is not entitled to a return of rent pursuant to subsection 85.(1)(i) of the Act. Therefore, this claim is denied.
[18] The Officer notes that the Application requested $800.00 compensation for expenses incurred as a result of the Landlord’s contravention of the Act and/or the tenancy agreement. The Officer finds that the Landlord did not contravene the Act and/or the tenancy agreement. Therefore, this claim is denied.
Regarding issue iii: Is the Tenant entitled to costs?
[19] The Tenant’s counsel is seeking costs pursuant to sub-subsection 85.(1)(q) of the Act, which state:
Powers of the Director After hearing an application, the Director may make an order Requiring an unsuccessful party to an application to pay costs to a successful party to the application.
[20] Based on the Officer’s findings in this Order, the Tenant, who is also the applicant is unsuccessful in their request. Therefore, the Tenant is not entitled to costs. Therefore, this claim is denied.

Orders of the Director of Residential Tenancy

Conclusion
[21] The Application is denied.
IT IS THEREFORE ORDERED THAT
A. The Application is denied.
DATED at Charlottetown, Prince Edward Island, this 20th day of September, 2023.
(sgd.) Cody Burke Cody Burke Residential Tenancy Officer

Orders of the Director of Residential Tenancy

NOTICE
Right to Appeal
This Order can be appealed to the Island Regulatory and Appeals Commission (the “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.