Claim No: 418273
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
ON APPEAL FROM AN ORDER OF THE
DIRECTOR OF RESIDENTIAL TENANCIES
Cite as: Boostani v. Cap Reit LLP, 2013 NSSM 30
BETWEEN:
AMIRNADER BOOSTANI
Tenant (Appellant)
- and -
CAP REIT LLP
Landlord (Respondent)
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Halifax, Nova Scotia on August 6, 2013
Decision rendered on August 12, 2013
APPEARANCES
For the Tenant self-represented
For the Landlord Jennie Mailman, site manager
REASONS FOR DECISION
1 This is a Residential Tenancies Appeal by the Tenant from the decision of a Residential Tenancy Officer dated July 26, 2013, which had denied the Tenant his request for a rent abatement, arising from certain deficiencies that he identified with his apartment. Most notably, he complained about the fact that his balcony was essentially unusable because of objects falling from, or being thrown from balconies above. He also complained that the apartment was infested with mice.
2 The subject apartment is on the ground floor of a seventeen-storey building containing 505 apartments. The Tenant and his wife chose a ground floor apartment in order to be able to take their dog outside without having to go on an elevator with him. The Tenant himself is something of a fitness devotee who planned to do his morning stretches on the large balcony, weather permitting. This became undesirable when he routinely found the balcony littered with cigarette butts, and other debris including (at least once) men’s underwear. He also was splashed with some liquid, perhaps only water, on one occasion, which was enough to turn him off to the idea of exercising on the balcony.
3 Despite complaints to management, the problem never resolved sufficiently to give him confidence to use the balcony for his intended purpose. The Landlord says that this is a common problem with high-rises, and that it sent out a notice to the tenants reminding them that it is contrary to their leases to throw anything off of their balconies. Understandably, this is a difficult thing for any landlord to police.
4 The other major problem with this apartment was the mouse problem. The Tenant supplied photographs showing mouse droppings in many places in the apartment. The volume and ubiquity of these droppings points to a significant problem. The Tenant testified that he was routinely catching anywhere between four and twelve mice per week in various traps.
5 Throughout the tenancy, both the Landlord and the Tenant waged a partially successful battle against the rodents. Eventually, the Tenant and his wife were so discouraged by the constant presence of mouse droppings everywhere that they gave notice and ended the tenancy after just four months. In fact, they left several weeks before the expiry of the month of July, for which they had provided a rent cheque.
6 The Tenant testified that he had asked the Landlord for some financial relief, amounting to part of the last month, given that the tenancy had begun partway through a month where they had paid a partial months rent. The Landlord refused. The Tenant accordingly sought relief from the Director of Residential Tenancies.
7 The Residential Tenancy Officer denied relief on any of the claims advanced, largely on the basis that the Landlord was found to have taken reasonable steps, such as by hiring a pest control company.
8 In a strange twist, it turns out that the Landlord accidentally shredded the July cheque and never cashed it. The Residential Tenancy Officer was not aware of this fact. As such, the Tenant actually still owes $1,025.00 to the Landlord - subject to any offset that I may order by way of a rental rebate.
9 One other small claim was advanced by the Tenant. He sought reimbursement in the amount of $185.34 for a hotel room which he and his wife stayed in for a couple of days after the apartment experienced a water leak. It turns out that the building was being re-roofed during a time of heavy rainfall, and there were many apartments experiencing leaks to some degree. The Tenant believed that it was wise to give the Landlord free access to the apartment to run fans and dehumidifiers in order to mitigate the possible effects of wetness, such as mold. It does not appear that the Tenant sought any approval from the Landlord in advance of incurring this charge. Nor is it clear that the apartment was necessarily uninhabitable during this time.
10 Abatements are not appropriate for every perceived minor deficiency in a rental apartment. Where the Landlord delivers much less than promised, however, an abatement is appropriate whether or not the Landlord acted responsibly. Abatements are based on contract law, and the theory that a party, namely the Landlord, has simply been unable to deliver substantially what it promised. It is not a matter of good faith. Either it delivers what it promised or something less.
11 In my view, the combined problem with the balcony and the mouse infestation made this a substantially less desirable apartment than the Tenant had reason to expect. This is a case for a rent abatement.
12 The Tenant effectively asked for all of his rent to be rebated, covering a four-month tenancy. I do not accept that the situation was so bad that a 100% abatement would be appropriate. In my view, the abatement should be considerably less.
13 Assessing the amount of an abatement is not an exact science. In my view, an abatement of 35% is appropriate. This would be toward the high end of abatements ordered in residential tenancies. 35% of the rent paid ($4,100.00) is $1,435.00. This is the abatement I am prepared to award.
14 As for the hotel bill, I am not satisfied that the Tenant was obliged to leave the apartment. There was no evidence to the effect that other affected tenants did so, despite the fact that the water leak affected many apartments.
15 As noted earlier, the Tenant still owes July rent of $1,025.00, through no fault of his, because the Landlord mangled the cheque. Accordingly, there will be an offset. The Landlord shall rebate to the Tenant the difference between the rent abatement of $1,435.00 ordered and the $1,025.00 otherwise owed as rent, which nets out to $410.00 to be paid by the Landlord to the Tenant. The order of the Director shall be varied accordingly
Eric K. Slone, Adjudicator