CLAIM NO. 258509
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: KLE Management v. Pickrem, 2006 NSSM 7
BETWEEN:
Name KLE Management, Suevrk Management,
& Jagjit Goomar
Appellants
Name Robyn Pickrem, Matthew Deuville &
Kelsie Donaldson
Respondents
D E C I S I O N
[1] This Appeal of an Order of the Residential Tenancies Officer dated November 15, 2005 came on before me on April 18, 2006.
[2] On behalf of the Appellants I heard the evidence and submissions of Mr. Jagjit Goomar, and the evidence of his Superintendent, Mr. Jason Parsons. On behalf of the Respondents I heard the evidence of the tenant Kelsie Donaldson, her grandmother Margaret Pickrem, and her mother Robyn Pickrem.
[3] The evidence establishes that the landlord KLE Management entered into a lease with the Respondents on or about August 13, 2005. Robyn Pickrem was to be the actual tenant; her boyfriend Matthew Deuville was also to be a tenant; and her mother Margaret Pickrem signed as, in effect, a Guarantor.
[4] The lease was for Apt. No. 35 at 995 MacLean Street, in Halifax. It was to commence September 1, 2005 for a monthly rent of $775.00, together with a security deposit of $375.00.
[5] The evidence was, and I so find, that the regular rent for units like unit 35 in the building was higher than $775.00, and was usually in the mid $800.00 range. However, the apartment apparently needed cleaning and as a result of that, the landlord agreed to rent the unit to the tenant at a lower rate. The tenant understood that the unit would need cleaning, although she thought that this only referred to the “usual” cleaning associated with moving into an apartment unit.
[6] Ms. Donaldson arrived at the building on August 13, 2005, with her mother to look at the unit. She was told by the Superintendent that she could not have access, because the existing tenant had not been given advanced notice. She was told to come back in a week. She did, but when she arrived she was told again by the Superintendent that she still could not gain access to the apartment because the tenant had still not received notice.
[7] Ms. Donaldson, who was starting school in early September, at that point agreed to pay the first month’s rent with the damage deposit “sight unseen”. She did so.
[8] On September 2, 2005, Ms. Donaldson, her grandmother and her mother arrived at the apartment to move in. They found the apartment to be in a shockingly filthy state. There was mud and dirt in the refrigerator, the bathtub was black with grime and scum, and there were maggots in the kitchen cupboards. Indeed the unit was so bad that even the Superintendent, Mr. Parsons, agreed on cross-examination that he himself would not have lived in the unit in the state in which it was found.
[9] Ms. Donaldson was not prepared to accept the apartment. In her view, and in the view of her witnesses, it would have taken much more than the “usual” cleaning, and much longer, to put the unit into a habitable state.
[10] Mr. Parsons, the Superintendent, then showed Ms. Donaldson other units in the building that were the same basic configuration, although they were in different parts, or different floors, of the building. These units were in better shape, but the landlord was prepared to rent them to her for the same price as unit 35. Ms. Donaldson refused to take or consider any of the alternatives. In her view she had rented unit 35, and she was not obligated to take anything else in substitution therefore.
[11] She then left the building, and found another apartment.
[12] Ms. Donaldson then asked for a return of her first month’s rent, and the security deposit. The landlord refused. She then made an application to the Residential Tenancies Officer.
[13] By decision dated November 15, 2005, the Residential Tenancies Officer declared that the landlord was in violation of its obligations under the Residential Tenancies Act, R.S.N.S. c. 401, as amended, and in particular s. 9 (1) of the Act by reason of its failure to keep the premises in “a good state of repair and fit for habitation.” He ordered KLE Management, Suevrk Management and Jagjit Goomar to pay the tenants Robyn Pickrem, Matthew Deuville and Kelsie Donaldson the sum of $1,150.89 being the first month’s rent and the security deposit, plus interest thereon.
[14] The landlord appeals on the grounds that:
a. the only landlord on the lease was KLE Management, and accordingly there should not be an Order against Suevrk Management or Jagjit Goomar;
b. the tenant knew that unit 35 needed cleaning, and in fact took a reduced rent on that basis, and so cannot complain of the state of the apartment; and
c. in any event the landlord had offered a replacement unit but the tenant did not take the replacement.
[15] As set out above, I am satisfied on the evidence that unit 35 was not in a habitable state as of September 2, 2005. I am further satisfied that the landlord was accordingly in breach of its obligations under the Residential Tenancies Act, as well as the lease.
[16] The issues then are:
a. was the tenant obligated to take unit 35 in its state because she knew when she entered into the lease that it needed cleaning; and
b. if she was not obligated to take unit 35 because it was not fit for habitation, could she be required to accept a replacement unit that was comparable in size for the same rent as unit 35.
(A) Had the tenant agreed to take a dirty apartment?
[17] In my view the fact that the tenant agreed to rent unit 35 with the knowledge that it would require some “usual” cleaning does not relieve the landlord in this case of its obligations under the lease and the Residential Tenancies Act to provide a habitable apartment.
[18] First, to accept this argument would be to permit the landlord to avoid its statutory obligations (to wit, to provide a habitable unit) by means of a side agreement. This is contrary to the provisions of s. 3 (1) of the Residential Tenancies Act, which provides that the Act applies “notwithstanding any agreement, declaration, waiver or statement to the contrary.”
[19] In other words, the landlord cannot avoid its obligation to provide a habitable unit at the commencement of the tenancy, and throughout its term.
[20] Second, and in any event, the tenant here on the evidence was relying on the landlord’s representation as to the state of the apartment. She made two attempts to view the unit, and was frustrated both times by the landlord’s failure to give advanced notice to the sitting tenant. Accordingly, she agreed to take the unit while operating under a misapprehension - fostered by the landlord - as to the amount of cleaning that would be required to clean the apartment. It is one thing to expect to have to do some floor washing or dusting in order to make a unit presentable; it is another to engage in a major cleaning operation in order to make a unit habitable.
(B) Was the tenant required to accept a “comparable” unit in exchange for unit 35?
[21] Pursuant to the terms of the lease, the unit that the tenant agreed to rent and the landlord agreed to provide was unit 35. In my opinion the tenant is entitled to insist on the unit contracted for, and is not obligated to accept a “comparable” unit, even one in the same building, and even one for the same rent. Residential property is a form of real property, and the law is clear that real property to all intents and purposes is unique. The law permits people to be subjective when it comes to real property. Accordingly, in my opinion a tenant who has agreed to rent a particular unit is not, absent some clause in the lease, obligated to accept any other unit, no matter how similar.
[22] By way of summary then I find that:
a. the landlord was obligated to provide unit 35 in a fit and habitable condition as of the commencement of the lease;
b. the landlord breached that obligation; and
c. the tenant was not obligated to take a substitute, or to wait for the landlord to make unit 35 habitable, before demanding her money back.
[23] Accordingly, I dismiss the landlord’s appeal with respect to the Order to return the first month’s rent and the security deposit to the tenant.
[24] Turning to the question of whom the Order should be made against, as noted above the landlord complained that the only person on the lease was KLE Management, and that accordingly that was the only person against whom the Order ought to have been made.
[25] At the hearing I was initially inclined to agree to this submission. However, following the hearing I reviewed all of the documents in the Residential Tenancies Officer’s file and note that part of the materials included the following e-mail or memo that was headed “From Suevrk Mgt to Tenants,” and continued as follows:
“we have explained to you and you have understood that as is units are rented with discount, so your rent on lease gives you cash savings and you agree to fix up the unit cleaning minor repairs etc and accept older carpets etc. You also agree to clean at the end of lease to save deductions from sec deposit.”
[26] The memo was signed by the tenants Kelsie Donaldson and Matthew Deuville.
[27] The fact that the landlord on the lease is said to be “KLE Mgt or assigned management”, and the fact that the memo relating to the rent reduction (which the landlord relied upon in the appeal) came from Suevrk Management, satisfies me that Suevrk was the “assigned management” and that accordingly it too should be liable on the Order. The Order returning the money shall be made against KLE Management and Suevrk Management. The memo makes clear that KLE Management had assigned management to Suevrk Management, and on that basis both should be bound by the Order.
[28] Accordingly, I will make an Order requiring KLE Management and Suevrk jointly and severally to return the money in question, which totals $1,150.89.
Dated at Halifax, Nova Scotia )
this 24th day of April, 2006 ) ___________________________
) ADJUDICATOR
) W. Augustus Richardson, Q.C.
277736.1