Every once in a while a case crosses my desk that strikes me as completely ludicrous. That happened this week and I had the chance to have a little laugh at the stupidity exemplified by the application.
In this particular case my client was the tenant. Her monthly rent was $1125. She had an agreement with the landlord to allow her to do some minor repairs that were needed through no fault of the tenant. The landlord agreed to reimburse the expenses which in this case totalled $97.80. When no one came to collect the receipts or to inspect the work the tenant put a note with her rent cheque and deducted the $97.80 (rounded to $100) from the rent.
In addition to the deduction for the repairs, the tenant made a deal with the landlord respecting the painting of a bedroom in her rental unit (the prior tenant had painted it an awful colour). The landlord agreed to supply the paint and the tenant was pleased to provide the labour. No cash would change hands except that the landlord would provide the paint. The landlord never delivered the paint and ignored the tenant. In response to being ignored, the tenant withheld $200 from her monthly rent and indicated that she wanted the paint.
The landlord, instead of contacting the tenant to make arrangements, proceeded to serve a Notice of Termination for Non-Payment of Rent. He alleged that the tenant was $300 short on her rent as she had paid only $825 towards the rent amount.
On receiving the Notice of Termination for Non-Payment of Rent the tenant got nervous as she had expected a response from the landlord in the form of a conversation. Hence, she paid the Landlord $200 via email money transfer--which is the method she had used in the past to pay rent.
The Landlord, perhaps to prove a point or assert his authority, responded to the email money transfer by saying that the password to get the money did not work. He maintained this position even though the password was the same password used by the landlord for prior months. The Landlord, knowing the tenant was at work, called the tenant's home and left a message on the answering machine stating that the password did not work and that the tenant had an hour to fix it or he was applying to the Landlord and Tenant Board. Less than an hour later, while knowing the tenant was at work, the Landlord filed an application to the Landlord and Tenant Board to terminate an evict.
At the Hearing, the Board learned that the landlord, after filing the application but before the Hearing, collected the $200 email money transfer by using the password that he had used in previous months and which would have worked had he entered it "properly". The Board held that the Landlord should have given the tenant credit for the $200 as it was paid before the deadline in the N4 Notice of Termination. Hence, the amount of the rent in arrears, at the time of application was only $100.
The Landlord admitted that there was indeed an agreement respecting the receipts for $97.80. However, he took two positions in relation to this money. Firstly, he maintained that there was no agreement that it be deducted from the rent and that he wanted to get his rent and then provide the tenant with a cheque. He had no explanation for why the receipts were never picked up nor why the work the tenant did was never inspected and he had no answer to the tenants note, attached to the rent, explaining that she had deducted the cost of the materials for the repairs.
Secondly, the Landlord maintained that even if the tenant were allowed to deduct the $97.80 from the rent, she was still short $2.20 in rent arrears. He maintained that this amount of $2.20 precluded the N4 (Notice of Termination for Non-Payment of Rent) from having been voided by the tenants payment. He insisted that he was entiteld at law to come before the Board for $2.20 and that he should get his $170 application fee for doing so.
The Board concluded that the $97.80 was reasonably deducted from the rent by the tenant. With respect to the $2.20 the Board acknowledge that this amount was indeed short. However, the Board was concerned that the Landlord would think that spending $170 to pursue $2.20 was a reasonable way of proceeding. Given the communication from the tenant the Board felt that the landlord had options other than proceeding to file an application to the Landlord and Tenant Board.
As the Order the Landlord was requesting was for $2.20 plus $170 application fee, the Board referred to section 207(4) of ther Residential Tenancies Act. That section provides that the Board shall not make an order for an amount of money if the amount is less than the prescribed amount. The prescribed amount, is set out in section 58 of O.Reg. 516/06, which indicates that for the purposes of section 207(4) the amount is five dollars ($5.00).
Accordingly, the landlord's application was dismissed and he lost the $170 application fee.
Thursday, 1 August 2013
Nickels and Dimes: Applying for Small Arrears
About Michael Thiele
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