SCCH 331640
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Murray v. Ulta Enterprises, 2010 NSSM 47
Between:
Duncan Mac G. Murray
Appellant
- and –
ulta Enterprises
RESPONDENT
DECISION AND ORDER
Adjudicator:David T.R. Parker
Heard: August 5, 2010
Decision: August 16, 2010
Parker:-this is an appeal from a decision of the Order of the Director of Residential Tenancies dated June 25, 2010 and being file number 201001438.
The order of the Director Of Residential Tenancies required the appellant/tenant to remove his second vehicle from 6022 North St Halifax Nova Scotia on July 31, 2010. Further the director ordered that the tenancy between the parties will terminate on September 30, 2010 at which time the tenant and the occupants will provide vacant possession of the premises known as 6022 North St apartment 208 Halifax Nova Scotia to the landlord/respondent on that date.
The appellant has security of tenure pursuant to section 10[8] of the Residential Tenancies Act.
At the time of the residential hearing the tenant/appellant owed rent of $650.00 for June 2010. The May 2010 rent was paid on June 14, 2010. It is noted that a previous director's order regarding the parties in May of 2007 dealt with the matter of rental arrears being due to the respondent/landlord. The landlord/respondent in that particular case was unsuccessful in terminating the tenancy and apparently it was because the rental arrears were within the allowance period of 15 days. The director in the order also noted that since May 2007 the tenant/appellant continued to be late in paying his rent.
In today's appeal which is a trial de novo the landlord/respondent provided detailed information on late payments of rent on almost every month since July 2007. This in fact was the basis of the director's decision when it stated that the habitually late payment in rent is the only legitimate breach to warrant termination of tenancy.
There were a number of other issues that were brought up at the hearing including the parking of the tenant/respondent’s second car at the rented premises. Other than the car, the residential hearing discounted the other issues as a legitimate reason or reasons for terminating the tenancy. The appellant during this hearing stated in his own summary "now, to get to the meat of the matter, the real problem here is the perception, in the eyes of the landlord, of an epidemic of TENANT INSUBORDINATION!" It became clear to me at least during the hearing that a great deal of the problem arose from this tenant/appellant being annoying to the landlord, the superintendent and other residents from time to time and in the landlord's smooth operation of the residential complex.
In this particular case except for one occasion the landlord/respondent has allowed the tenant/appellant to be continually late in the payment of his rent. When I say allowed I mean the landlord/respondent in the several years that the tenant has resided in the building has only sought to do something about this late payment of rent on two occasions this being one. The previous occasion the landlord/tenant was unsuccessful terminating the tenancy at the residential hearing when the tenant apparently paid his rent within a 15 day period of its due date. It would appear that as of the date of this appeal that July month's rent has been paid albeit late. It is my view the landlord is estopped in terminating the lease by accepting late payment of rent over a long period of time. I refer to the case of Sackville Mobile Home Estate v. Planetta [2006] N.S.J. No. 223.
The tenant/appellant has never refused to pay rent and based on this reasoning, the estoppel argument and the fact that the parties are into a security of tenure situation, the tenancy should continue.
During the hearing Mr. Murray indicated that he would provide the landlord with a couple of months’ rent in advance so that if he were late in making a monthly payment they could draw from that account. The landlord could of course accept this proposal but it does not have to and in my view it is not up to a landlord to take over the banking arrangements of the tenant. The more appropriate, again in my view, arrangement would be for the tenant to take care of his own a banking arrangements, provide the landlord with post dated cheques for the year and insure his bank account has sufficient funds to pay the rent. The landlord of course has obligations and that is why he requires the rent to be paid at a certain date as he undoubtedly has his obligations in line with those dates. This has been the second time that the matter has appeared before the Residential Tenancies Board and now the Appeal Court and if this continues it will be a strong indicator that the landlord has not acquiesced in allowing the tenant to be late in the payment of his rent. In other words it would be quite appropriate for the director to terminate the lease for late payment of rent if it is brought to the director’s attention on another occasion.
Therefore I will vary the Director’s Order in part.
With respect to the second motor vehicle of the appellant it shall be removed from the 6022 North St. residence parking area as there is only one space available for the appellant.
It Is Ordered that the tenancy between the parties continue at this time.
Dated at Halifax this 16 day of August 2010