LD24-284

Landlord application · security deposit, compensation, rent arrears. Outcome: partial. I. The Landlord shall retain the security deposit plus interest in the amount of $1,560.37. II. The Tenants shall pay the Landlord $2,548.78 by September 27, 2024.

Linked prior order: LR24-06

Order text

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024
INTRODUCTION
[1] The applicable legislation is the Residential Tenancy Act (the “Act”).
[2] On May 10, 2024, the Landlord filed a Landlord Application to Determine Dispute (Form 2(B)) (the “Landlord Application”) with the Residential Tenancy Office (the “Rental Office”) seeking outstanding rent, to make a claim against the security deposit, and compensation above the security deposit. A copy was emailed to the Tenants on May 13, 2024.
[3] On July 31, 2024, a teleconference hearing was held before the Residential Tenancy Officer (the “Officer”). Two Landlord representatives (the “Representatives”) and a Tenant, representing both Tenants, participated in the hearing.
ISSUES
i. Do the Tenants owe rent to the Landlord?
ii. Is the Landlord entitled to retain the security deposit?
iii. Is the Landlord entitled to compensation above the security deposit?
SUMMARY OF EVIDENCE
[4] On May 19, 2022, the parties entered into a written fixed-term tenancy agreement for the period of July 1, 2022, to June 30, 2023, which then converted to a month-to-month agreement. The Rental Unit is an apartment in a multi-unit building (the “Residential Property”). Rent was $1,545.00 due on the first day of the month. A security deposit of $1,500.00 was paid on June 16, 2022. The Tenants vacated the Rental Unit on May 6, 2024.
Landlord’s Evidence and Submissions
[5] The Representatives’ evidence is as follows.
[6] On May 1, 2024, the Tenants notified the Representatives that they would be vacating the Rental Unit in four days. On May 3, 2024, the May 2024 rent payment did not go through and Tenants told the Representatives they had put a stop payment on their account. The Landlord incurred a $45.00 NSF charge as a result of the stop payment. The Tenants did not provide at least 30-days’
notice and the Landlord is seeking rent owing and the NSF charge for May. The Rental Unit could not be re-rented until June 1, 2024, due to required repairs. A copy of the declined transaction was submitted into evidence.
[7] On May 6, 2024, the Representatives were notified the electricity had been turned off at the Rental Unit and they inspected the unit on May 7, 2024. There were numerous pin holes in the walls and holes in two of the bedroom doors. The Representatives observed some holes in the walls were not properly repaired and there were holes in the ceiling. There were cat scratches on the walls and the Rental Unit smelled of cat urine. The Tenants had permission to have one cat but not for the cat to damage the unit.
[8] There were dents in the fridge, freezer, and oven, and the smoke detectors were removed. There was garbage left behind by the Tenants and there was mold that was not mitigated by the Tenants.
The Representatives were required to hire a restoration company due to the smell and damages.
A locksmith had to rekey the locks of the Rental Unit and the Residential Property because the Tenants did not return the keys. The Representatives agreed there was recurring mold because of the new construction but they told all their tenants to clean the mold if it appeared. Before and after photographs of the Rental Unit were submitted into evidence.

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024 Tenant’s Evidence and Submissions
[9] The Tenant’s evidence is as follows. The Tenant agreed that he had damaged a bedroom door when moving out. The Tenant agreed the Landlord could retain the security deposit for the damaged door and for cleaning but disputed the Landlord’s other claims.
POST HEARING EVIDENCE AND SUBMISSIONS
[10] The parties were permitted to submit additional evidence after the hearing.
[11] The Representatives submitted the following documents: invoices for garbage removal and a locksmith, an estimate for a smoke detector replacement, quotes for repairing the fridge and stove, a reconnection fee for Maritime Electric, invoice for the restoration company, a copy of the security deposit cheque, and larger photos of the move-in and move-out inspections. The additional evidence was forwarded to the Tenants.
[12] The Tenants responded to the additional evidence with five audio recordings detailing the Tenants’ evidence as well as a document summarizing the Tenants’ evidence. The Tenants were going to return to the Rental Unit to clean and return their keys but the Representatives showed up at a residence the Tenants were visiting and took photos of them, so the Tenants were afraid to return to the Rental Unit. The Tenants informed the Representatives they required a new smoke detector but never received one, so they bought their own and took it when they left.
[13] The fridge and stove could have been damaged when the Tenants’ child was learning to walk. The Tenants disputed damaging the air vents. The marks under the window were from the Tenants’ bedframe and not their cat. The Tenants told the Representatives about the recurring mold issue and the Tenants were told just to continue to wipe the mold. There was incomplete construction to a part of the ceiling when the Tenants moved in.
[14] A copy of the Tenants’ evidence was forwarded to the Representatives. The Representatives responded to the additional evidence and either disputed the submissions or stated the evidence was irrelevant. The Respondents’ additional evidence was forwarded to the Tenants but no further submissions were requested.
[15] The Landlord’s finalized expenses as requested in the Application are as follows:
Item Cost Restoration Company $4,998.60 Garbage Removal $286.35 Locksmith $241.50 Fridge Repair $690.00 Stove Repair $718.75 Smoke detector $32.99
[16] The breakdown of the restoration company’s expenses are as follows:
Item Cost Cleaning (2 cleaners and a vapor shark machine) $649.00 General Demolition $21.32 Door Replacement x 2 and hardware $498.26 Painting and Seam Fill $3,031.46 Appliances (remove and reset washer/dryer) $62.61 Mold Remediation $83.95 HST $652.00 Total $4,998.60

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024
ANALYSIS
Issue i. Do the Tenants owe rent to the Landlord?
[17] The relevant law is as follows
55. Notice for monthly or other periodic tenancy
(2). A tenant may end a month-to-month or other periodic tenancy by giving the landlord a notice of termination effective on a date that (a) is not earlier than one month after the date the landlord receives the notice;
(b) is the day that before the day that rent is payable under the tenancy agreement.
[18] The Officer finds that the Landlord has provided sufficient evidence, specifically the testimony of the Representatives and the submitted documentary evidence, to establish that the Tenants did not provide at least one month’s notice to end the tenancy and failed to pay rent in the amount of $1,545.00 for May 2024. The Landlord has also established that they have incurred a $45.00 NSF charge as a result of the stop payment on the Tenants’ account, for a total amount due and owing of $1,590.00.
Issue ii. Is the Landlord entitled to retain the security deposit?
[19] As the Officer has found that the Tenants owe rent and an NSF charge to the Landlord, the Officer finds that the Landlord has established that they are entitled to retain the security deposit plus interest for these expenses.
Issue iii. Is Landlord entitled to compensation above the security deposit?
[20] The relevant law is as follows:
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.
Garbage removal expense in the amount of $286.35
[21] The Officer finds that the testimony of the parties, the before and after photos, and the details of the garbage removal invoice, provide the Officer with enough evidence to conclude that the Tenants left garbage in the Rental Unit when they vacated which required disposal by the Landlord. This claim is allowed.
Locksmith expense in the amount of $241.50
[22] The Officer finds that the testimony of the parties and the details of the locksmith invoice, provide the Officer with enough evidence to conclude that the Tenants did not return their keys and a locksmith was required to rekey the locks to the Residential Property. This claim is allowed.

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024 Appliance repair in the amount of $1,408.75
[23] The Officer finds that the testimony of the parties, the before and after photos, and the details of the repair estimates, provide the Officer with enough evidence to conclude that the damages to the fridge and stove were damaged beyond reasonable wear and tear.
[24] Had the damages not occurred, the Landlord could have waited several more years before replacing or repairing the appliances. The Island Regulatory and Appeals Commission (the “Commission”) in Order LR24-06 applied the principle of betterment when taking into account depreciation in determining the amount to be awarded to a landlord for damage caused by a tenant.
The Commission noted that a party should not be put in a better position than they would have been had the wrongdoing not occurred.
[25] The evidence establishes that the appliances were new in May 2022 when the Tenants moved in.
As each appliance has a life expectancy of approximately 10 years, the Officer awards the Landlord 80% of the repair costs, totaling $1,127.00.
Smoke detector expense in the amount of $32.99
[26] The parties had conflicting evidence regarding the smoke detector. The Representatives stated the Tenants took the Landlord’s smoke detector and the Tenants stated they bought their own because the Landlord would not replace a faulty smoke detector. The Officer notes that the Representatives’ move out photographs show two smoke detectors on a counter in the Rental Unit, which appears to contradict both parties’ testimony. The Officer finds that based on the evidence presented, the Landlord has not provided sufficient evidence to establish that they are entitled to this claim.
Cleaning expense in the amount of $649.00
[27] The Officer notes that upon vacating, a tenant is responsible to leave a rental unit reasonably clean, but they are not responsible to clean to a higher standard, such as a move-in ready condition for the next tenants. The Officer has reviewed the Landlord’s photographs and finds that after the garbage removal, the Rental Unit would not have been below the standard of reasonably clean.
[28] The Tenants also had permission to have a pet in the Rental Unit and some pet odor is to be expected over a two-year timeframe. The Officer finds that the Representatives have not established that the Tenants should be required to pay for the expense of the vapor machine. This claim is denied.
Door replacement expense in the amount of $498.26
[29] The Officer finds that the testimony of the parties, the before and after photos, and the details of the repair invoice, provide the Officer with enough evidence to conclude that the damage to the two doors was beyond reasonable wear and tear. The evidence establishes that the doors were new in May 2022 when the Tenants moved in. As the doors have a life expectancy of approximately 20 years, the Officer awards the Landlord 90% of the repair costs, totaling $515.69 ($448.43 + HST).
Painting and seam fill expense in the amount of $3,031.46
[30] The Officer notes that a tenant is only responsible for the expense of repairing damages caused beyond reasonable wear and tear. A tenant is not responsible for the expense of repairing and repainting an entire rental unit after they vacate. The Tenants lived in the Rental Unit for two years, so some wear and tear is to be expected, such as holes in walls for hanging photographs.

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024
[31] The Officer finds that the testimony of the parties, the photos, and the details of the repair invoice, provide the Officer with enough evidence to conclude that the some of the damage to the walls was beyond reasonable wear and tear and some seam filling and painting was required. Based on the submitted evidence, the Officer finds that the Representatives have established that they are entitled to 10.0% of this expense in the amount of $348.61 ($303.14 + HST).
Appliance removal and reset expense in the amount of $62.61
[32] As noted above, a tenant is only responsible for the expense of repairing damages caused by reasonable wear and tear. The Officer finds that the Landlord has not established that moving the appliances was required because of damages caused directly by the Tenants. This claim is denied.
Mold remediation expense in the amount of $83.95
[33] In Order LR24-30, the Commission made comment regarding the parties’ obligations when it comes to mold remediation:
Tenants are responsible for “undue damage” to a rental unit that is caused by their actions or neglect (s. 28(3)). However, the Residential Tenancy Act also requires the Landlord to maintain the Rental Unit in an appropriate state of repair (s. 28(1)). Based on the facts and evidence presented to us by both parties, we are satisfied that there was a mold problem in the Rental Unit that was the responsibility of the Landlord to address, which in this case required cleaning and painting. Therefore, while the Tenants acknowledged the mismatched paint touch up in one room, the Landlord had to clean and paint anyway, and we do not find the Tenants responsible for that cost.
[34] The evidence establishes that both parties agreed the Tenants notified the Representatives that there was mold forming because of the new construction and the Tenants were advised to wipe it on a regular basis. As the Tenants notified the Representatives of the mold and the mold was not as a result of any actions or neglect of the Tenants, the Officer finds that the Representatives have not established they are entitled to this claim.
CONCLUSION
[35] The Application is allowed in part.
[36] The Landlord shall retain the security deposit plus interest in the amount of $1,560.37.
[37] The Tenants shall pay the Landlord $2,548.78 by the timeline below over and above the security deposit and interest.
[38] The calculations are as follows:
Item Amount Rent Owing (May 2024) and NSF charge $1,590.00 Garbage removal $286.35 Locksmith $241.50 Fridge and Stove $1,127.00 Doors $515.69 Painting $348.61 Subtotal $4,109.15 Less Security Deposit and Interest ($1,560.37) Total owing to the Landlord $2,548.78

Orders of the Director of Residential Tenancy Dockets 24-307 and 24-308 September 4, 2024
IT IS THEREFORE ORDERED THAT
I. The Landlord shall retain the security deposit plus interest in the amount of $1,560.37.
II. The Tenants shall pay the Landlord $2,548.78 by September 27, 2024.
DATED at Charlottetown, Prince Edward Island, this 4th day of September, 2024.
(sgd.) Mitchell King Mitchell King Residential Tenancy Officer
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.