Claim No: 282684
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
ON APPEAL FROM AN ORDER OF THE
DIRECTOR OF RESIDENTIAL TENANCIES
Cite as: Siteman v. Clark, 2007 NSSM 41
BETWEEN:
MATTHEW C. SITEMAN
Tenant
- and -
KEITH CLARK
Landlord
APPEAL DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on August 7, 2007
Decision rendered on August 8, 2007
APPEARANCES
For the Tenant - self-represented
For the Landlord - self-represented
This is an appeal from an order of the Director dated June 6, 2007. That order denied the application of the Tenant for return of rent and a security deposit in the total amount of $612.50. A hearing de novo was held in Dartmouth and testimony under oath taken from the Tenant, Matthew Siteman, his spouse Katie Demone and the Landlord, Keith Clark.
For the reasons that follow, which differ somewhat from those of the Director, I have come to the same result as the Director.
Some of the facts are fairly straightforward. The tenant is a Nova Scotian who was moving back from Saskatchewan to take a job in Muquodoboit, and needed a place to live with his spouse and three - about to be four - children. He arranged with his new employer, a Mr. Marks, to secure a place for him for the 1st of March 2007. On about February 28th, Mr. Marks put down a first month’s rent of $625 plus a $300 security deposit on the subject premises at 2137 West Petpeswick Rd. The clear understanding was that this was to be a month to month tenancy only because the Tenant was said to be interested in purchasing a home after he had settled back into Nova Scotia.
The premises was made ready for occupancy by the 1st of March, but the Tenant was delayed in leaving Saskatchewan and was not likely to be arriving in Nova Scotia until the middle of the month. When the Tenant and his family arrived in Nova Scotia, staying temporarily in Truro, a meeting was arranged at the premises for 1:00 p.m. on the 13th of March. The purpose was to be the signing of a lease and the handing over of possession.
The events of March 13th occupied most of the evidence. There are conflicting versions of what occurred.
The Tenant and his spouse testified that they arrived at the premises at about 12:50 p.m. and waited until 1:10 or 1:15 p.m. The Landlord failed to show up. They left, probably sooner than they might otherwise have done because a very pregnant Ms. Demone had to use the bathroom. They drove 15 or 20 minutes to Marks’s office in Musquodoboit and tried unsuccessfully to call Mr. Clark. At Mr. Marks’s suggestion they went back to the premises and arrived there at about 2:00 p.m., waited another 10 minutes or so, then left feeling discouraged. When they received a call that night from the moving company asking where to deliver their furniture, they made the snap decision to have the furniture delivered to Ms. Demone’s mother’s home in Truro and decided to get out of the lease for the subject premises.
The Landlord admitted that he was late getting to the premises because he had some customers at his store who were slow to leave, but he arrived at about 1:10 p.m. and waited for more than an hour. When the Tenant did not show up, he left a note taped to a window, a partially filled out lease form on the kitchen table, and the doors unlocked.
The Tenant and Ms. Demone testified that when they came back at 2:00 p.m. they did not see any note on the window and did not try the door to see if it was unlocked.
The only way to reconcile these two stories is to take some of the time estimates with a grain of salt. It is more likely than not that there is essential truth to both versions, and they managed to pass like ships in the night.
In the final analysis, what I believe the Tenant has failed to appreciate in all of this is that he was already in a Landlord/Tenant relationship and the premises was his, despite not having a key. There had been a verbal agreement to rent this unit as of March 1, 2007. The lack of a written lease did not mean that there was no tenancy. The meeting on March 13th was not a mere viewing or inspection where the Tenant would have had the option to take it or leave it. It was an occasion where possession was to be formally handed over.
The foul-up on the 13th did not fundamentally change the legal relationship. Assuming the Landlord could be blamed for missing the appointment, the Tenant had every reason to be angry, disappointed and possibly concerned, but it was not an event that gave him a legal basis to avoid the lease that Mr. Marks had negotiated on his behalf.
I do not believe the Tenant did all he should have done to make contact with the Landlord and clarify the mis-communication. Instead he concluded that he and his family were not welcome or not wanted. This was based in part on a cautionary conversation some weeks earlier with the Landlord’s girlfriend who had warned them that there was no bathtub in the unit, which might pose a problem with young children.
In the result the Tenant served a formal notice to quit and demanded the return of half of the March rent and the security deposit. He and his family ended up in unsatisfactory accommodations with family members for the next few months. I accept that this was not what they had wanted, and I do not believe they had any less incentive than did the Landlord to have this arrangement proceed smoothly.
Nevertheless, I must apply the law. The Residential Tenancies Act provides:
10 (1) Notwithstanding any agreement between the landlord and tenant respecting a period of notice, notice to quit residential premises shall be given .....
(b) where the residential premises are let from month to month, .....
(ii) by the tenant, at least one month,
before the expiration of any such month;
What this means is that the Notice to Quit given by the Tenant could not have been legally effective until the end of April 2007.
The only basis to return the Tenant’s money would be to conclude that the Landlord wilfully repudiated the lease on the 13th of March and essentially locked the Tenant out of possession. There is no evidence upon which I would make such a finding.
The Landlord is correct that, in law, he could have demanded rent until the end of April, and that keeping the $300 security deposit only partially compensates him for that. As well, the Tenant could have been held responsible for the electricity bill for that same period of time.
In the result, the appeal must be dismissed and the order of the Director stands.
____________________________
Eric K. Slone, Adjudicator