LR03-03

Appeal · other. Outcome: denied.

Linked prior order: LD02-285

Order text

Order LR03-03 - Rental Appeal - A-001-03 Re: Maynard (Order LD02-285 - v. MacWilliams) Docket A-001-03 Order LR03-03 IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act , by Catherine Maynard, represented by Joe Edwards against Order LD02-285 of the Director of Residential Rental Property dated December 20, 2002. BEFORE THE COMMISSION on Monday, the 27th day of January, 2003. Weston Rose, Panel Chair Maurice Rodgerson, Vice-Chair Kathy Kennedy, Commissioner Order Participants 1. Appellant: Catherine Maynard represented by Joe Edwards Edward Junior Perry (Witness) 2. Respondent: Trevor MacWilliams Sean Murphy (Witness) Reasons for Order 1. Introduction This is an appeal of Order LD02-285 of the Director of Residential Rental Property dated December 20, 2002 regarding a mobile home located at 19284 Trans Canada Highway, Route # 1 in Hampton, P.E.I. The appeal was received by the Commission on January 3, 2003. The hearing was held January 20, 2003 at the offices of the Island Regulatory and Appeals Commission. 2. Background Trevor MacWilliams (Respondent) occupies a mobile home in Hampton which is owned by Catherine Maynard (Appellant), sister-in-law to his father, Joe Edwards (Appellant's Representative). The Respondent claims he has an agreement with his father to purchase the trailer for $10,000 and would pay his father back when he could, even if it took ten years. There was no rental agreement signed and no set monthly payments were required. He also states that because the mobile home needed work and given its condition he would never have entered into a rental agreement. The only reason he moved into the trailer was because he would be able to do the renovations that were needed and when they were completed and his father was paid the $10,000, he would own the trailer. He bought a refrigerator, stove and a wood stove because the furnace didn't work. He also repaired the roof and did work on the skirting outside. He has paid one payment to the Appellant for $600. He has also deposited $2,300 in his father's bank account but the receipt does not indicate the reason for the deposit. Mr. Edwards states he did everything he could to help his son by setting him up in the mobile home so he wouldn't have to pay high rent in Charlottetown as well, he supplied his son with cars. He states that the $2,300 deposited in his bank account was payment for a car. The mobile home was acquired as part payment for the sale of a cottage and he felt if his son occupied the mobile home and honored the agreement he would have a mobile home he could sell for down payment on a house. He claims there was an agreement to rent the mobile home for a period of four years and two months at a rental rate of $300 per month. At the end of this term a total of $15,000 would have been paid, and then the mobile home would be turned over to the Respondent for one dollar. Mr. Edward's states that the monthly rent of $300 was not paid, other than one payment of $600 and the Respondent and his girlfriend have occupied the home for over a year and owe arrears of $3,000. The Appellant filed Form 4 Notice of Termination by Lessor of Rental Agreement (Exhibit E-2) on November 28, 2002. 3. Decision The appeal is denied. The key consideration for the Commission is whether or not a rental agreement is in place. The jurisdiction of the Commission and the Director of Residential Rental Property is restricted to disputes where a rental agreement exists or is deemed to exist. The Rental of Residential Property Act defines rental agreement as: (o) "rental agreement" or "agreement" means an agreement, whether written or oral, express or implied, whereby a lessor confers upon a lessee the right to occupy residential premises; Residential premises is defined in the Act as: (p) "residential premises" or "premises" includes (i) any house, dwelling, apartment, flat, tenement or other place that is occupied by a natural person as a residence or that part of any such place that is or may be occupied by a natural person as a residence, whether such residential premises are furnished, partly furnished or unfurnished, (ii) land rented as a mobile home site whether or not the lessor also rents that mobile home to the lessee, but does not included premises exempted by the regulations; The Rental of Residential Property Act defines lessee as: (g) "lessee" means a person to whom permission is given, pursuant to a rental agreement, to occupy residential premises and includes his assigns and legal representative; and the Act defines lessor as: (h) "lessor" means the owner or other person permitting the occupation, pursuant to a rental agreement, of residential premises and includes his heirs, assigns, personal representatives and successors in title; The Respondent filed a number of written statements (Exhibits E-5, E-6, E-7, E-8, E-9 and E-10) which all suggest he had an agreement to purchase the mobile home. The Appellant's representative, other than his own statements, did not provide any evidence to support his claim that a rental agreement was in place. Both parties to the appeal gave evidence to suggest that at some point in the future the mobile home was to become the property of the Respondent. The Commission must agree with the Director of Residential Rental Property that the arrangement does not meet the definition of a lessee. The Commission finds a rental agreement does not exist; therefore, the provisions of the Act covering rental agreements do not apply. For this reason, the Commission does not have the jurisdiction to rule on the validity of the Notice of Termination nor the appeal of that notice. It was indicated at the Appeal hearing that both parties have filed claims in court and in the opinion of the Commission that would be the most appropriate manner to deal with this dispute. Order WHEREAS Joe Edwards, representative for Catherine Maynard filed an appeal against Order LD02-285 of the Director of Residential Rental Property on January 3, 2003; AND WHEREAS the Commission heard the appeal in Charlottetown on Monday, January 20, 2003; NOW THEREFORE , for the reasons given in the annexed Reasons for Order; IT IS ORDERED THAT The appeal is denied ; and The Commission finds that a rental agreement does not exist and for that reason it does not have the jurisdiction to rule on the validity of the Notice of Termination nor the appeal of that notice. DATED at Charlottetown, Prince Edward Island, this 27th day of January, 2003. BY THE COMMISSION: Weston Rose, Panel Chair Maurice Rodgerson, Vice-Chair Kathy Kennedy, Commissioner NOTICE 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.