LD24-152

Tenant application · eviction. Outcome: granted. A. The Notice is invalid and the Application is allowed. B. The tenancy agreement between the parties shall continue in full force and effect.

Order text

Orders of the Director of Residential Tenancy
Docket 24-230 May 10, 2024
Introduction
[1] On April 18, 2024, the Tenants filed a Tenant Application to Determine Dispute (Form 2(A)) (the “Application”) with the Residential Tenancy Office (the “Rental Office”). The Application was filed pursuant to the Residential Tenancy Act (the “Act”) to dispute an Eviction Notice (From 4(A)) dated April 8, 2024, effective April 30, 2024, (the “Notice”). No reason was selected on the Notice however the particulars stated:
The lease term ending on 30th Apr 2024.
[2] On April 10, 2024, the Notice was posted to the door of the Rental Unit.
[3] On April 22, 2024, the Tenants electronically served the Application to the Landlord.
[4] On April 22, 2024, the Rental Office e-mailed the Notice of Hearing to the parties and also mailed it to the Tenants.
[5] On April 29, 2024, the Evidence Package (“EP”) and a Supplementary Evidence Package (“SP”) were e-mailed to the parties. The EP contains 22-pages of documents submitted by the parties, and copies of the Notice of Hearing, and the Application. The SP contains five pages of documents submitted by the Tenants.
[6] On May 2, 2024, a teleconference hearing was held before a Residential Tenancy Officer (the “Officer”). The Landlord and one Tenant participated in the hearing.
Issue to be Decided
i. Do the Tenants have to vacate the Rental Unit due to the Notice?
Summary of the Evidence
[7] On May 1, 2023, the parties entered into a written fixed-term tenancy agreement for the Rental Unit, which consists of a single-family house. Rent is $1,750.00 due on the 1st day of the month.
A security deposit of $1,750.00 was paid.
Landlord’s Evidence and Submissions
[8] The Landlord stated he is seeking to terminate the tenancy between the parties because the fixedterm agreement expired on April 30, 2024. He stated he is having financial difficulties and is planning on renovating the Rental Unit so he can sell it. The Landlord stated when the tenancy agreement was signed he notified the Tenants the agreement would not be renewed. The Landlord submitted a copy of the tenancy agreement into evidence.
Tenants’ Evidence and Submissions
[9] The Tenant stated she was not provided with a proper eviction notice if the Landlord is planning on renovating and selling the Rental Unit. She stated this is the second house the Tenants have rented from the Landlord as the Landlord sold the first house. The Tenant stated when the Tenants moved into the Rental Unit, it contained mold, bugs, and old furniture, and it had to be cleaned and treated for bugs.
[10] The Tenant stated she believes the Tenants are being evicted because there is a lawsuit pending against the Landlord, as one of the Tenants fell on a broken step at the Rental Unit and broke their arm. The Tenants submitted text messages between the parties into evidence.

Orders of the Director of Residential Tenancy

Analysis
Do the Tenants have to vacate the Rental Unit due to the Notice?
[11] In applications where there is a dispute over an eviction notice, it is the Landlord’s burden to prove, on a balance of probabilities, their reasons for terminating the tenancy agreement. This means the Landlord must provide the decision-maker with sufficiently clear and convincing evidence to prove their claims.
[12] The Landlord stated he does not wish to renew the tenancy agreement because the fixed-term has ended and he wants to renovate the Rental Unit and then sell it. The Tenants are disputing the Notice as they stated they did not receive a proper eviction notice for renovations. The relevant law is as follows:
52.(1) Deemed renewal where no notice
Where a tenancy agreement ends on a specific date and does not include an option to renew, and the landlord has not terminated the agreement in accordance with Division 3 of this Part, the landlord and tenant are deemed to renew the tenancy agreement on that date as a monthly tenancy with the same rights and obligations as existed under the former tenancy agreement, subject to any rent increase that complies with this Act.
52.(2) Exceptions
Subsection (1) does not apply (a) where the landlord and tenant have entered into a written agreement in accordance with subsection 51(3);
(b) where the tenancy has been terminated in accordance with this Act;
(c) to a rental unit provided by an employer to an employee as a benefit of employment;
(d) temporary accommodation under the Tourism Industry Act that is provided for a guest for a continuous period of two months or more; or (e) to premises ordinarily occupied by the owner of the premises and vacated by the owner for a period not exceeding seven months during a calendar year.
64.(1) Landlord’s notice for demolition, conversion, repairs, renovations
A landlord may give a notice of termination if the landlord, after obtaining all necessary permits and approvals as required by law, requires possession of the rental unit in order to (c) subject to the approval of the Director under subsection (2), do repairs or renovations to the rental unit that are so extensive that they require vacant possession of the rental unit.
64.(2) Director’s approval required
Before giving notice for the purpose of clause (1)(c), the landlord shall apply to the Director in accordance with the regulations, providing the information specified by the regulations, and request the Director’s approval to provide the notice to the tenant.
68.(1) Tenant’s right of first refusal for repairs or renovation
A tenant who receives notice of termination of a tenancy under clause 64(1)(c) has and may exercise, in accordance with this section, a right of first refusal to occupy the rental unit as a tenant when the repairs or renovations are completed.

Orders of the Director of Residential Tenancy

[13] The Landlord stated he wants to end the tenancy so he can renovate the Rental Unit to sell it.
Clauses 64.(1) and (2) state if a landlord is seeking termination of a tenancy for renovations, a landlord would first be required to obtain the approval of the Director before serving a notice of termination. However, the Officer finds that the evidence does not establish the Landlord has obtained the Director’s approval to serve a notice of termination for renovations. Clause 68.(1) also provides the Tenants with the right of first refusal after the renovations have been completed.
[14] Clause 52.(1) outlines if a tenancy agreement does not include an option to renew and the landlord has not terminated the agreement in accordance with Division 3 - Landlord’s Notice, then the tenancy agreement converts to a month-to-month agreement. The Officer has reviewed the tenancy agreement and finds that it ended on April 30, 2024, and it does not include an option to renew.
[15] The Officer further finds the Landlord has not terminated the tenancy agreement in accordance with Division 3 – Landlord’s Notice. This part of the Act sets out the different reasons a landlord may provide notice to a tenant to end a tenancy agreement. The Officer finds that this part of the Act does not cite the end of a fixed-term tenancy agreement as a valid cause for eviction. Clause
52.(2) does provide exceptions to clause 52.(1), however the Officer finds that the evidence does not establish that any of the exceptions apply in this case.
[16] The Landlord has the burden to prove, on a balance of probabilities, any and all reasons for terminating the tenancy agreement. After reviewing the documentary evidence and testimony of the parties, the Officer finds that the Landlord has not provided sufficient evidence to justify a termination of the tenancy agreement on any of the legislated grounds. The Officer finds the tenancy agreement has converted to a month-to-month agreement and that it shall continue between the parties.
Conclusion
[17] The Notice is invalid and the Application is allowed.
[18] The tenancy agreement between the parties shall continue in full force and effect.
[19] This Order will be sent to the parties by email.
IT IS THEREFORE ORDERED THAT
A. The Notice is invalid and the Application is allowed.
B. The tenancy agreement between the parties shall continue in full force and effect.
DATED at Charlottetown, Prince Edward Island, this 10th day of May, 2024.
(sgd.) Mitchell King Mitchell King 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.