IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Transcription

1 Claim No: SCCH No IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Watts v. Haverstock Estate, 2016 NSSM 30 BETWEEN: Name Kelly Watts Appellant/ Tenant Name Estate of Lorne Haverstock Respondent/ Landlord Editorial Notice: Addresses have been removed from this electronic version of the judgment. Date of Hearing: February 11, 2016 and March 3, 2016 Date of Decision: March 17, 2016 Kelly Watts appeared on her own behalf with the assistance of Heidi Chartrand. Terry Miller and Robert Miller appeared on behalf of the Landlord. DECISION This is an appeal of the Decision and Order of Residential Tenancies Officer, Sheila Briand, dated December 17, The parties appeared without legal counsel. The Tenant, Kelly Watts, was assisted by Heidi Chartrand. At the commencement of the hearing, Ms. Watts expressed concern over giving testimony in court. Ms. Chartrand purported to act as Ms. Watts agent and wished to speak for her. I indicated that I would place more weight on

2 2 anything Ms. Watts spoke to directly. As it turned out, what they intended is what eventually unfolded, Ms. Watts provided oral evidence and Ms. Chartrand conducted the advocacy. I note that Ms. Watts testimony was delivered well as she maintained her composure throughout. Ms. Chartrand was well-spoken and did an admirable job of assisting with Ms. Watts advocacy. Terry Miller and Robert Miller appeared on behalf of the Estate of W. Lorne Haverstock. The estate purportedly owns the subject property, 1546 Hammonds Plains Road, in Hammonds Plains. Willard Lorne Haverstock died on August 26, 1994 in Halifax, Nova Scotia. According to an affidavit from another proceeding, in his will, Mr. Haverstock named as executrixes, Mildred Joan Miller of Kentville, Nova Scotia and Margaret Joyce Taylor, of Atlanta, Georgia. Mildred Miller is Terry and Robert Miller s mother and a daughter of the late Mr. Haverstock. Margaret Joyce Taylor died in 1990 and, consequently, her son Barry Frank Taylor, of Halifax, Nova Scotia is now the co-executor with Mrs. Miller. Mrs. Miller and her husband managed the property and rented it, following the death of her father. Due to ill health, Mr. Miller, senior, is unable to manage the property and the co-executrix, Mildred Miller, is attending to her husband. Accordingly, the management of the rental property has fallen to her sons, Robert Miller and Terry Miller. Robert Miller has assisted his mother with the management of the property for some time. Since their father's illness, Terry Miller has divided the duties with his brother. I took it from their evidence that Terry was responsible for the business and management of the property, while Robert handles the repair and maintenance issues. A copy of the Will is not in evidence and there is no mention of the consent or involvement of Mr. Taylor, however, I am satisfied for the purposes of this proceeding, that both Terry and Robert Miller are acting on behalf of the estate for the renting of the property and, indeed, the house is owned by the Estate of Lorne Haverstock. The Millers testified that they were inexperienced in renting property, stating several times they were not professional landlords. They simply wanted to rent their family property rather than disposing of it. However, the Residential Tenancies Act makes no distinction between landlords who rent a single dwelling, flat, room or other single premises and large property management companies who may own several large apartment buildings. The landlords rights and obligations and those of their tenants are the same no matter who the landlord may be. Several times throughout this proceeding, I was left with the impression that the responsibility required of a landlord was greater than they had envisioned. The nature of the matter largely concerns payment of arrears of rent. The Landlord also seeks compensation for alleged damage and additional rent following an early termination of the tenancy. The Tenant seeks reimbursement for work done to the premises by her. In addition, she seeks an abatement of rent for certain irregularities resulting from failure to follow the provisions of the Residential Tenancies Act, allegations of harassment in collecting the rent and a denial of liability where Gary Goodwin did not sign the lease.

3 3 An appeal from the decision of a Residential Tenancies Officer is a new hearing based on the evidence presented before the Small Claims Court Adjudicator. The evidence presented usually consists of that presented to the Residential Tenancies Officer and any additional evidence the parties seek to adduce. It is important to note as well that this hearing was lengthy having taken two nights of scheduled court time (plus an additional night for the Tenant s request for an extension of time to file the appeal). There was a significant amount of oral and documentary evidence for a residential tenancy appeal. In the interests of brevity, these reasons do not include a full review of every piece of evidence presented. Rather, I have summarized the key issues and the evidence used in making these findings. In reaching this decision, I have considered all evidence presented and given each the weight it is due. The Facts The facts respecting the term of the tenancy and its duration are not in dispute. The tenant, Kelly Watts entered into a standard form of lease with the landlord, the Estate of Lorne Haverstock in September, The Tenant was able to move in before the end of September rent-free. In addition, she was given a rental incentive of free rent for October, The tenancy was a yearto-year lease with an anniversary date of October 1 each year. The rent was $800 per month. On October 18, Ms. Watts gave notice by that she intended to vacate the premises effective November 30, She vacated the premises on or before that date. During the tenancy, Ms. Watts paid rent for June, September and October The landlords found new tenants who commenced living there on February 1, For the reasons stated in this decision, I find the landlord, has established on a balance of probabilities that the estate is entitled to arrears of rent in the amount of $8000. In addition, the tenant has established her claim for paint, plus additional work. I find there was a security deposit paid in the amount of $400.00, for which the Tenant must receive credit. In her decision, Ms. Briand noted that the landlord agreed to reduce the rental arrears owing to $ , being the amount of arrears, less a credit for painting by the tenant. The Law Section 17D of the Residential Tenancies Act provides the following for an appeal to the Small Claims Court of a decision of the Director of Residential Tenancies: Within fourteen days of holding a hearing pursuant to subsection 17C(4), the Small Claims Court shall: (a) confirm, vary or rescind the order of the Director; or (b) make any order that the Director could have made. The Issues The issues in this appeal can be summarized as follows:

4 4 - What impact does the absence of a written lease with Gary Goodwin have on the liability of either part? - How much rent is due for the duration of the tenancy, pursuant to the lease? - Did the Landlord mitigate their losses sufficiently following the last date of occupancy by Ms. Watts? - Has the Landlord established liability for repairs and other damage? - Is the Tenant entitled to abatement of rent for repairs completed or the actions of the Landlord? The Evidence Terry Miller testified that the house is a family home but after his grandfather s death, the family all lived in homes of their own, so the decision was made to rent it. According to him, his family had few difficulties with previous tenants. Ms. Watts was his first such problematic tenant. Ms. Watts dealt initially with Mildred Miller. The tenancy took effect on October 1, 2014, however, the lease was not signed until December 11 and 12 by Ms. Watts and Mrs. Miller respectively. There was a considerable difference of opinion as to who was responsible for the lease. Ms. Watts was accompanied by Mr. Gary Goodwin at the time she met with the Millers. Mr. Goodwin was purportedly in a relationship with Ms. Watts at the time. There is some evidence to suggest that Mr. Miller believed that Mr. Goodwin would be signing the lease and moving in as a co-tenant. She would occupy the premises from September when they first met and receive a rental incentive for October s rent. Commencing November 1, 2014, Ms. Watts would pay $800 per month. From the evidence, it is clear she paid only three months rent during the entire tenancy. She was also responsible for removing garbage when she moved in. The payments stopped in October, 2015, following an argument between the Miller brothers and Ms. Watts over arrears of rent. The end result was Ms. Watts giving notice by in October and vacating the premises by the end of November Mr. Miller also seeks on behalf of the estate rent until the house was rented on February 1, 2016, reimbursement for electricity and oil and sundry repairs. He testified that there was garbage laying around after she left along with old carpeting. There was a problem with the heating system but that has been repaired under warranty. Mr. Miller testified that he began to meet with Ms. Watts in hopes of dealing with the arrears. Rather than seeking to evict her, the brothers had a promissory note prepared and called Ms. Watts about signing it. The arrears at the time were for nine months rent of $7200. There would be payments of $ per month without interest, but in default, interest would be payable at

5 5 1% per month. Not surprisingly, the tenant refused to sign which served only to enflame a difficult situation. Mr. Miller received an from the tenant on October 18, 2015 advising that she would be leaving the premises by November 30. Toward the end of the tenancy, the tenants and their visitors (e.g. Gary Goodwin and Mary Goodwin) complained of mold in the premises, a significant cold draft around the pipe which they claim caused it to freeze. He described the house as being over 100 years old with a stone foundation and a well in the basement. To address the cold, Mr. Goodwin allegedly put insulation in the house. As a result, he sent a bill to Ms. Watts for $5175 for which she sought compensation from the landlord. Under cross examination, Terry acknowledged that he spoke with Ms. Watts about the fact that she was on social assistance. He acknowledged that he allowed the tenants and occupants to do some painting and promised reimbursement. He also confirmed that there was no requirement to fill the oil tank. In redirect evidence, Mr. Miller indicated that his intent at all times was to make payment of the arrears as easy as possible. Robert Miller testified that he understood from his mother that she was meeting with a woman, her spouse and children who wanted to rent the property. Ms. Watts and Mr. Goodwin met with Robert that day where he walked them through the house. Ms. Watts indicated she wanted to move in on that day. He described the house as having a rock foundation and because it is over 100 years old, it is damp and musty. The basement windows have screens and he recalls specifically giving instructions not to leave the windows open in the winter but to do so in the summer. The fresh air keeps the musty smells down. He described several repairs he made for the tenants including the carpet. At all times, Robert made repairs and dealt with the physical issues with the house. Mr. Miller acknowledges that the property is expensive to heat. He described many loads of garbage that had to be removed from the tenants moved out. He recalls giving Mr. Goodwin a copy of the lease but never receiving a signed one in return. Mary Goodwin gave evidence for the Tenant. She is Gary Goodwin s sister. She also had occasion to visit Ms. Watts during the course of the tenancy. She testified to seeing Ms. Watts doing paint and repairs. She recalls Gary and Kelly complaining of and on about various repairs that were necessary to be done in the house which she saw herself. Kelly Watts testified that she discussed with Robert that Gary Goodwin would be on the lease as her co-tenant. She was not aware that he did not sign a lease. She recalls signing the lease but not receiving a Residential Tenancies Act. In her opinion, this was a breach of the lease. Furthermore, she alleges that Mr. Goodwin not being a party to the lease was also a breach. If that is not correct, they are asking that I find Mr. Goodwin was a party to an oral tenancy. There

6 6 is no reference on the lease to a property manager, such that she would know to deal with Terry Miller. She testified that she did some of the work including hauling garbage and other things in exchange for an abatement of rent of the tenancy. She further testified that she was in contact with Mrs. Miller several times regarding renovations and repairs. She described the house as cold and constantly drafty, such that it is a violation of sections 9 (1), and (2) of the Statutory Conditions under the Residential Tenancies Act. She testified to seeing mice and hiring a friend who captured 15 of them. She placed into evidence a transcript of the voic together with a recording of Terry Miller calling her from on the road at approximately 10 o'clock at night to seek payment. There was also discussion of a promissory note. She testified that she felt afraid and harassed. Mr. Miller also attempted to call her parents home. Further, he threatened to contact social services. Under cross examination, Ms. Watts acknowledged that she was never asked to leave. There was discussion of payment of $250 per month on the arrears until they were retired. She had always dealt with Robert and Mildred Miller regarding the matter and not Terry Miller. She confirmed again that she believed that Gary had been paying rent, and was not aware that she still owed money to the Landlord. She acknowledged that she did make payments on June 30, September 2 and October 20. There was reference to mold in the premises and she sought a doctor certificate, however, she did not provide one to the Court. Findings In reviewing the evidence, I make the following findings: Lease with Gary Goodwin Gary Goodwin was not a party to the written lease. More significantly, he was not a party to this application or appeal. Consequently, I am unable to make any findings of liability against him. That said, nothing in this decision infringes on either Ms. Watts or the Estate s rights to pursue any action against him. Likewise, if he feels he has a just claim, Mr. Goodwin s rights in this respect are not infringed either. As an alleged co-tenant and one who allegedly installed insulation in the house, I find it curious that Gary Goodwin was not called upon to give evidence at the hearing by either party. He was a significant player in this story. His evidence would have gone a long way in clarifying several allegations before this Court. The only parties to the current lease are the Estate of Lorne Haverstock and Kelly Watts. However, had Mr. Goodwin been a party to the lease and I had found him liable, I would have found both Mr. Goodwin and Ms. Watts jointly and severally liable. In other words, co-tenants are equally responsible individually and collectively to ensure that all rent is paid. In that case, the landlord need only take action to recover the rent from one party, if they chose to do so. The

7 7 tenant who was forced to pay the rent would have to seek compensation in a separate legal action against the other co-tenant. Put another way, if Mr. Goodwin had been named in this matter and found liable, Ms. Watts would have still been responsible for the rent and expected to claim compensation directly from Mr. Goodwin. I do not find any defense to any portion of this claim resulting from the absence of Gary Goodwin on the lease. Lease Payments In reviewing the evidence, I find that the tenant, Kelly Watts occupied the premises from September 2014 until she vacated the property on November 30, A rental abatement was given for the months of September and October The monthly rent was $800 per month. I find that three months rent was paid over the course of the tenancy. Neither party disputes this portion of the calculation. Accordingly, I find Ms. Watts owes $8000 in arrears for rent.

8 Mitigation of Losses 8 Both Terry and Robert Miller testified to receiving an from Ms. Watts on October 18 that she would be vacating the premises by November 30, This was an early termination. Statutory Condition 6 states as follows: Abandonment and Termination - If the tenant abandons the premises or terminates the tenancy otherwise than in the manner permitted, the landlord shall mitigate any damages that may be caused by the abandonment or termination to the extent that a party to a contract is required by law to mitigate damages. In addition, Statutory Condition 7(b) permits a landlord entry on notice to show premises to prospective tenants during daylight hours once notice to quit has been given. As a result, the Millers were entitled to enter the premises with prospective tenants, while Ms. Watts still occupied the premises. Both Terry and Robert Miller testified that they did not make any repairs to the premises and did not show it until January of They were then able to rent the property by February I find that they have failed to fulfill this obligation to mitigate as they did not make efforts to rent the house when they received notice. Consequently, I deny claim for rent for January However, I allow a portion of rent for December 2015, namely 50% or $400. I also disallow any claims for oil or power during any portion of these months. Other Claims by the Landlord In their application, the landlord claims reimbursement for garbage removal of $200 and a smoke detector. I find these have not been proven. There are also claims for wall repairs for TV mounts, door trim repair and carpet repair. I find all of these items to be the result of ordinary wear and tear and not proper for compensation. That portion of the landlord's claim is denied. Abatement Claimed by the Tenant When the tenant sought to receive compensation for damages and other matters, she was advised by the Residential Tenancies Officer that she had to file a counterclaim. The Residential Tenancies Act makes no such reference. In this case, both parties agreed that it was important to bring this matter to a conclusion. Accordingly, I am prepared to deal with the abatement claim of Ms. Watts. Gary Goodwin s Insulation In her submissions, Kelly Watts claimed reimbursement for several items of repair. By far the most controversial was for the insulation purportedly installed by Gary Goodwin. Based on the evidence, I am unable to find that the insulation created any benefit for the Landlord or that it was done with their authority. Furthermore, I find the sum of $5175 was not actually paid. Ms. Watts had originally claimed that Mr. Goodwin had intended to be her co-tenant. If so, it would

9 9 not make sense for him to bill her for repairs or improvements. I decline to award anything for this item. Repairs Ms. Watts also seeks compensation for various items which are not supported by receipts. I accept her evidence that she paid to have electrical fixtures relocated. However, I allow only $100 for this amount. I do not allow anything to capture mice, or for the claims for repairs to the Humidex. The claims for postage and printing are items of costs which I will address further in this decision. The parties also agree that Ms. Watts is entitled to a claim for painting, $ Breaches of Residential Tenancies Act and Human Rights Act In her submissions, Ms Watts claimed that she was forced to leave early due to medical problems arising from mold. She submitted into evidence a note from her doctor where she attended to his office complaining of respiratory problems. No diagnosis was given. No certificate in support of an early termination was signed. The mold was found on boxes and some items in the basement. There is no evidence that the mold found in the basement is the cause of any medical problems suffered by Ms. Watts or her children. Ms. Watts alleges a violation of the Nova Scotia Human Rights Act. While I find that the landlord asked about sources of income and Ms. Watts ability to pay, she was in fact permitted to live there even when they could not secure Mr. Goodwin s signature. There is not enough evidence to support any application of that legislation to this matter. Ms. Watts alleges that Terry Miller harassed her in his telephone call that evening. I heard the call and the transcript is in evidence. On its own, the call did not sound harassing. Indeed, it would be reasonable to expect a call demanding payment when the rent was in arrears of nine months (and soon to be ten). However, the call was made at 10:00 pm and accompanied by a reference to sign a promissory note, which she refused to sign. That made it harassing but not of a type to warrant abatement. It was one of several such actions taken by the Landlord. It is appropriate for the benefit of the parties to offer comments on the Promissory Note. As noted in Court, parties should always attempt to settle a matter privately, but the agreement must be consistent with the Residential Tenancies Act. The promissory note put the landlord in a more advantageous position than had the Estate simply pursued its rights under the Act. Both the Residential Tenancies Act and the Small Claims Court Act have provisions holding the legislation as paramount. In addition, reference is made to s. 17D(2) of the Residential Tenancies Act:

10 10 s. 17D(2) The Small Claims Court may award to a successful party to an appeal the cost of the fee paid pursuant to subsection 17C(2) and any costs awarded to that party pursuant to clause 17A(k), but no other costs associated with the appeal. Even if additional costs could be claimed, the Regulations made under the Small Claims Court Act authorizes prejudgment interest of only 4% per annum. While I am satisfied it was not the intent of the Miller brothers to vary the jurisdiction of the Court or claim an excessive interest rate, that was the outcome. Consequently the Promissory Note would not have been enforceable. In other contexts, that arrangement may have been permissible, but residential tenancies law is unique and requires strict adherence to the statutes. I do not find this attempt or any other actions by the landlord constituted harassment that would justify abatement. Ms. Watts alleges that she did not receive a copy of a Residential Tenancies Act. Robert thought his mother provided one, but was not certain. She also was provided a copy of the lease dated December 12, 2014, which is well beyond the deadline of the September date when the tenancy began as required by s.7(1). The impact of a failure to provide a copy of the Act is found in s. 7(3). The Act allows for termination on three months notice by the tenant. However, I find only 41 days notice was actually given by Ms. Watts. Thus, I find this section is not applicable. I have considered other allegations of failure to follow provisions of the Residential Tenancies Act and other irregularities. I am not satisfied that if proven, they were sufficient to warrant an abatement. The Tenant seeks $575 for her damage deposit for her new place, along with damages for pain and suffering. These items are outside the jurisdiction of this Act. The lease prescribes payment of $400 for a security deposit for the house, although there is no evidence it was ever paid. Thus, I find it was not. Costs This appeal was commenced by the tenant seeking a significant reduction or a denial of any liability for rent owed. The end result was a modest reduction only. This is an appropriate case for each party to bear their own costs on appeal. I allow the application fee of $31.15 awarded by the Tenancy Officer.

11 Conclusion 11 I find the Landlord is entitled to judgment as follows: Rental Arrears: $ Rent to Dec 15/15 $ Application Fee $ Less: Paint: ($449.98) Renovations Allowed ($100.00) Total Judgment $ The order for judgment is varied as provided in this decision. An order shall be issued accordingly. Dated at Halifax, NS, on March 17, 2016; Gregg W. Knudsen, Adjudicator Original: Copy: Copy: Court File Claimant(s) Defendant(s)