2016 QCCQ 715, 2016 QCCQ 715

Alkhatib c. Timex Realty Corporation 2016 QCCQ 715 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-145050-144 DATE: February 3, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ AHMAD ALKHATIB […] Dollard-des-Ormeaux, Qc […] Plaintiff v.

TIMEX REALTY CORPORATION 3035, Debaene Montréal, Qc H9B 1J6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Ahmad Alkhatib, who was a tenant under a commercial lease for a one-year term ending August 31, 2014, sues the lessor, Timex Realty Corporation (“Timex”) for the return of a security deposit of $ 1,100 equivalent to two months rent. [ 2 ] Timex contests the claim alleging that it was entitled to charge Mr Alkhatib the cost of damage to the carpet of the premises.

The claim for $ 879.56 is based on an estimate of the cost of replacing the carpet derived from the bill of the carpet supplier who installed the carpet in August 2013, with applicable taxes. [ 3 ] This amount was invoiced to Mr Alkhatib on October 29, 2014 and a cheque for the difference between the security deposit and this amount, $ 220.44 was sent to Mr Alkhatib. Mr Alkhatib advised the Court that he did not cash the cheque because he does not accept owing any amount.

He therefore claims the full return of the security deposit plus interest and costs. [ 4 ] The lease (P-2) sets out some standard clauses that have a bearing on the issue.

TENANT’S MAINTENANCE AND REPAIRS 9.1 The Tenant at its own expense, shall operate, maintain and keep the Leased Premises including all facilities, equipment and services, both inside and outside, available to the Tenant exclusively, in such good order and condition, as they would be kept by a careful owner, and shall promptly make all needed repairs and replacements to the Leased Premises (save and except for latent or structural steel defects, provided that they were not occasioned by the Tenant’s action or omission) which a careful owner would make.

The Tenant will use Leased Premises with prudence and diligence and will keep the Leased Premises and all improvements thereon in first class condition. 11. INSPECTION AND ACCESS 11.1 The Landlord and its agents shall have the right, at all reasonable notice during the term of this Lease to enter the Leased Premises to examine the condition and to ascertain whether the Tenant is performing its obligations, and the Tenant shall make any repairs which the Landlord deems necessary as a result of such examination.

If the Tenant fails to make any such repairs within thirty (30) days after notice from the Landlord requesting the Tenant to do so, provided that such repairs may reasonably be made within the said period, the Landlord may without prejudice to any other rights or remedies it may have, make such repairs and charge the cost to the Tenant. Nothing in this Clause 11 shall be construed to obligate or require the Landlord to make any repairs. The Landlord shall have the right at any time to make any repairs deemed by the Landlord in its absolute discretion to be urgently required without notice to the

Tenant and charge the cost thereof to the Tenant. Any costs chargeable to the Tenant hereunder shall be payable forthwith on demand as additional rent and shall bear interest at the rate of twelve per cent (12%) per annum, compounded monthly from the date on which the same were incurred until payment.

SCHEDULE “B” DEPOSIT / LETTER OF CREDIT 1. The Tenant shall on or before the execution of this Lease, at the option of the Landlord, pay to the Landlord a deposit in the amount of one thousand one hundred dollars ($1,100.00) to be held by the Landlord as security for the Tenant’s performance of its covenants, obligations and agreements under this Lease.

If the Tenant shall be in default of any such covenant, obligation or agreement, the Landlord may, without notice to the Tenant, appropriate and apply such portions of the security deposit as the Landlord, in its sole discretion, considers necessary to compensate it for any rent outstanding or loss or damage suffered by the Landlord arising out of or in connection with such default.

Upon demand of the Landlord following any such appropriation, the Tenant shall pay to the Landlord an amount sufficient to restore the original amount of the security deposit. [ 5 ] Mr Alkhatib complains that, when he left the premises, they were inspected and he was not given any specific notice of a claim in monetary terms or in terms of any specific work he should carry out in order to fulfil his obligations to return the premises in good order. [ 6 ] The photographs of the premises Timex produced (D-1), showing what appear to be stains and some areas where two sections of the carpet join at the seams and have loose strands and Mr Alkhatib admits that these photos could represent the large room that comprised about half of the 500 square-feet premises.

He denies however that photographs showing damage to the walls were actually taken in the area he rented. [ 7 ] With respect to the carpet, he asserts that this is ordinary wear and tear. [ 8 ] The representative of Timex, Mr Greg Etingin, takes the position that the stains and damage to the carpet are more than ordinary wear and tear and that the carpet would have to be replaced, should the premises be re-leased to a third party.

As of now, no repairs have been carried out as the premises are still vacant. [ 9 ] Mr Alkhatib informs the Court that he attempted many times to obtain the return of the security deposit and received a visit of an inspector on two occasions, once being after he had sent his letter of demand of October 28, 2014 (P-1). [ 10 ] Timex had sent a letter of August 25, 2014, notifying Mr Alkhatib of a visit that would take place on August 26, 2014: “[…] to verify that the premises of the above-mentioned address, which you are vacating, is in broom clean condition with all systems in good working order, at which point we will retrieve your keys […]”. [ 11 ] Any notification to Mr Alkhatib that there was a problem with the condition of the premises would have been in conversations between their manager and Mr Alkhatib carried out between the end of the lease, August 31, and the invoice of October 29, 2014. [ 12 ] It may not be coincidental that the invoice came the day after Mr Alkhatib sent his formal request for the return of the security deposit. [ 13 ] In the Court’s view, the fact that Timex did not give prompt notice to Mr Alkhatib is not fatal to its claim. [ 14 ] Not providing the claim in a very timely matter may have caused some inconvenience to Mr Alkhatib in the form of annoyance and frustration, but it was not prejudicial to a significant degree. [ 15 ] The idea that the tenant should be given time to make repairs once he has been given a demand, as spelt out in clause 11, would apply if the landlord went ahead and had repairs done and then tried to charge the actual costs to the tenant. [ 16 ] In this case, in the obligation of restitution, Mr Alkhatib does not claim the right to replace the carpet himself.

He simply denies that it is his obligation to do so. [ 17 ] While the photographs do provide evidence that there is more than ordinary wear to the carpet, the pictures are limited to the area of the premises where the public was allowed to enter.

There are no photographs of the two other rooms which Mr Alkhatib states that he did not use to any great extent. [ 18 ] Neither party could give the Court exact dimensions, but it appears that the area in which there is damage is approximately one half of the premises. [ 19 ] It would therefore be possible to replace the carpet in those areas alone in order to make landlord whole. [ 20 ] As well, it was to be excepted that the carpet would show signs of wear and, if it were replaced as of the end of the lease, then Timex would have an added value, because he would have a brand new carpet rather than one that had one year of depreciation. [ 21 ] Mr Etingin estimated that the carpet should have a normal life span of five years, so there would be 20% betterment if the carpet were replaced immediately rather than four years later. [ 22 ] In cases such as this one, the Court must arbitrate a fair amount to be retained from the security deposit given that the parties could not agree. [ 23 ] On the basis of the evidence the Court has seen and heard, approximately 50% of the claim of $ 879.56, reduced further by 20%

because of added value, gives a net amount of $ 351.82, rounded out $ 350. [ 24 ] The Court will award the return of the security deposit less $ 350, that is to say $ 750. [ 25 ] Since the Defendant did not cash the cheque of $ 220 and the funds remain with Timex, interest should be calculated from the date of the letter of demand. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 750, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from the date of the letter of demand, October 28, 2014; CONDEMNS the Defendant to pay the Plaintiff’s costs for the judicial stamp in the amount of $ 106. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 25, 2016