Building Opportunities v., 2012 BCPC 447

Citation: Building Opportunities v. 0892868 B.C. et al. Date: 20121211 2012 BCPC 0447 File No: 1137573 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BUILDING OPPORTUNITIES WITH BUSINESS INNER CITY SOCIETY CLAIMANT AND: 0892868 B.C. LTD. and 0830691 B.C. LTD. DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L. A. KAHN Appearing for the Claimant: Christopher Gora Appearing for the Defendants: Amalia Liapis and Marc Williams

Place of Hearing: Vancouver , B.C. Date of Hearing: November 21, 2012 Date of Judgment: December 11, 2012 [ 1 ] This matter came before me on November 21, 2012 pursuant to the Simplified Trial Rules under the Small Claims Act . It concerns a lease between the Claimant, Building Opportunities with Business Inner City Society (“BOB”), and 0830691 B.C. Ltd. (“691) for premises located at 163 East Pender Street, Vancouver, B.C. (“premises”). The premises were subsequently purchased by 0892868 B.C. Ltd. (“868”) and the lease was assigned to 868 on November 15, 2010.

After the assignment of the lease, all subsequent dealings were between BOB and 868. [ 2 ] BOB claimed for repayment of rent for April 2011, which it says was mistakenly paid twice to 868. Although 691 is a Defendant because it is a party to the lease with BOB, 868 received the additional monthly rental payment. The parties have regarded the claim as between BOB and 868. [ 3 ] 868 says the second payment is rent for May 2011, as it was not until May or even later that summer until BOB fully vacated the premises. [ 4 ] Christopher Gora appeared as a representative of BOB.

He testified that the facts as alleged in the Claimant’s Trial Statement were true and accurate to the best of his knowledge. [ 5 ] Amalia Liapis (“Ms. Liapis”) appeared on behalf of 868. She is a director of 868. Marc Williams (“Mr. Williams’) appeared on behalf of 691. He is a director of 691. Ms.

Liapis confirmed in her testimony that the facts alleged in the Trial Statement she filed on behalf of 868 were true and accurate to the best of her knowledge. [ 6 ] 868 counterclaimed for damages to the premises that were discovered after BOB gave up possession, on the basis that these damages were beyond the normal wear and tear from the use of the premises. [ 7 ] The relevant provisions of the lease are, as follows:

a) The lease was dated May 1, 2009.

b) The lease was between 691 as the landlord and BOB as the tenant.

c) The commencement date of the lease was May 1, 2009.

d) The term of the lease was until April 30, 2011.

e) The rent was $4,583.33 per month. 3.6 Deposit Concurrently with execution and delivery of this Lease, the Tenant shall pay to the Landlord a deposit in the amount of $4,583.33 and GST thereon. Such deposit shall be applied towards payment of the last month’s rent and GST thereon coming due under this Lease. (my emphasis) 7.2 Repairs It is the intention of the parties that the interior of the Leased Premises shall be kept in good condition and repair (reasonable wear and tear excepted) as befits a similar office building within the vicinity of the Building, by the Landlord at the request of the Tenant.

The Tenant shall notify the Landlord of any need for or want of maintenance, repairs or replacements to the Leased Premises, and after receiving such notice the Landlord shall (or upon the Landlord otherwise becoming aware of the need of such maintenance, repairs or replacements the Landlord may), reasonably promptly and in a good and workmanlike manner, carry out or cause to be carried out the necessary maintenance, repairs and replacements. 7.3 Repair Where the Tenant is at Fault If the Building or any part thereof, or any Common Areas, or the roof or the outside walls of the Building or any other structural portions thereof, shall require repair or become damaged or destroyed through any act or omission of the Tenant (or those for whom it is in law responsible), or through the Tenant (or those for whom it is in law responsible) in any way damaging the Building, or the Common Areas or any part thereof, the Tenant shall pay to the Landlord on demand the Landlord’s reasonable cost of the resulting repairs, replacements and restoration. 11.1 Overholding If, at the expiration of the Term or any subsequent renewal or extension, the Tenant shall continue to occupy the Leased Premises without further written agreement, there shall be no tacit renewal of this Lease, and the tenancy of the Tenant thereafter shall be from month to month only and may be terminated by either party on not less than one (1) months’ written notice to the other.

Rent shall be payable in advance on the first day of each month in an amount equal to the monthly installment of Rent payable during the last year of the Term. All terms and conditions of this Lease shall, so far as applicable, apply to such monthly tenancy.

[ 8 ] BOB gave notice on December 22, 2010 of its intention to vacate the premises as at April 30, 2011, and had provided post-dated cheques through April 2011. [ 9 ] Ms. Shirly Chan, one of the witnesses on behalf of BOB, explained that although the deposit required pursuant to paragraph 3.1 of the lease had been provided to the landlord, an additional post-dated cheque was issued for April 2011, so in fact, the rent for April 2011 was paid twice. [ 10 ] When the lease ended, Ms. Elizabeth Charyna (“Ms Charyna”), one of the executives for BOB, told Ms.

Liapis that there were a few pieces of furniture that were not removed prior to April 30, 2011, and that they would be picked up shortly thereafter. The keys were returned on April 30, 2011 to Mr. Williams for delivery to Ms. Liapis. [ 11 ] There is a disagreement about when the furniture was removed. Ms. Charyna says it was within a week or so after April 30, 2011, which accounted for the double payment. [ 12 ] Ms. Charyna asked Ms. Liapis to conduct a walk through to confirm that the premises had been left in reasonable condition, as was required in the lease. Ms.

Liapis declined to do so as at April 30, 2011, and told Ms. Charyna that she would do so after all of the furniture had been removed by BOB. [ 13 ] Neither Ms. Charyna, nor Ms. Liapis, contacted each other to arrange an inspection. [ 14 ] Ms. Liapis said that after the furniture had been removed, she discovered that BOB had damaged the premises. A description of the repairs carried out by Gandon Renovation is Exhibit “D” in the 868 Trial Statement. The sum paid by 868 is $4,185. [ 15 ] Ms. Liapis explained the repairs.

The witnesses on behalf of BOB deny that BOB damaged the premises beyond reasonable wear and tear. [ 16 ] The evidence regarding the damages was very difficult to follow. I was unable to discern whether or not the repairs were required as a result of damage or from reasonable wear and tear. I will have further comments regarding the repairs later in these reasons. [ 17 ] BOB is a non-profit society which focuses on helping the residents in the Downtown Eastside of Vancouver, B.C. Its funds are limited. There is no doubt that Ms. Liapis and Mr.

Williams are aware of these circumstances and are somewhat chagrined, as well, that these proceedings were necessary. [ 18 ] One of the striking anomalies in this case is the lack of communication between the parties after April 30, 2011. [ 19 ] I must decide the case based upon the terms of the lease. [ 20 ] Did BOB vacate the premises on April 30, 2011, or in fact, overhold the premises and thus convert the lease to a month to month tenancy as provided by paragraph 11.1 of the lease. In my opinion, BOB did not overhold the premises. It left some furniture in the premises.

However, where the evidence differs between Ms. Charyna and Ms. Liapis as to the date the premises were vacated, I prefer the evidence of Ms. Charyna and I conclude that BOB vacated the premises on or about May 7, 2011. Also, I have concluded that Ms. Liapis did not object to BOB doing so. Ms. Liapis did not characterize the furniture storage as overholding. Overall, the relationship between the parties seemed to be relaxed and accommodating. Counterclaim [ 21 ] The evidence regarding the Counterclaim is unsatisfactory.

BOB was not given an opportunity to inspect the “damages” listed in Exhibit “D” to the 868 Trial Statement. [ 22 ] Also, there was dispute about the characterization of the duplicated rent payment. The lease did not require a damage deposit. Although there is correspondence between Ms. Charyna and Ms.

Liapis discussing matters in terms of a damage deposit, I am of the opinion that it was a misapprehension to describe the additional payment in these terms. [ 23 ] Nonetheless, has 868 proved that the damages were caused by BOB, and were as a result of more than reasonable wear and tear pursuant to paragraph 7.2 of the lease. [ 24 ] The particulars of the damages are, as follows: (

a) to replace under counter leak in the kitchen area (

b) to repair/replace drywall damaged (

c) to replace plumbing fixture in kitchen (

d) to replace plumbing seals joints (

e) to repair/replace broken tile (

f) to repair light fixtures (

g) to repair hot water exhaust piping and join to existing exhaust

(

h) to paint walls where indicated with markers [ 25 ] I am of the opinion that BOB has some responsibility for (a), (b), (

c) and (

d) from the list above. These relate to the leak in the kitchen area, which was not addressed by BOB while in occupation of the premises. [ 26 ] None of the other damages seem to be the responsibility of the tenant. [ 27 ] The costs of each of these repairs was not specified. I am unable to assess the reasonableness of those costs as it may relate to the labour charges and the costs of materials. [ 28 ] The evidence falls far short of my being able to determine whether or not these damages were related to the tenant improvements or to the space provided by the landlord. Doing the best I can with the evidence, I assess the damages payable by BOB at $500.

Summary [ 29 ] 868 must reimburse BOB $4,583.33 for the additional rent. Against that amount, 868 is entitled to a credit of $500, so that the net payable by 868 to BOB is $4,083.33. [ 30 ] BOB is entitled to filing fees of $156 and service fees of $40. [ 31 ] Under the circumstances, I decline to award pre-judgment interest. [ 32 ] The net payable by 868 to BOB is: Rent reimbursement from 868 to BOB $4,583.33 Less: Damage owing by BOB to 868 ($500.00) 868 to pay BOB’s filing fees $156.00 868 to pay BOB’s service fees $40.00 Total owing by 868 to BOB: $4,279.33 ________________________ Lawrence A. Kahn Adjudicator