Rad v. Anderson, 2018 NSSM 43

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Rad v. Anderson , 2018 NSSM 43 Claim No: SCCH 477399 BETWEEN: SAMUEL RAD Appellant/ Tenant -and – JUDY ANDERSON Respondent/ Landlord Samuel Rad – Self-Represented Judy Anderson with John Mills – Self-Represented Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. DECISION ( 1 ) This is an appeal of a Decision and Order of the Director of Residential Tenancies rendered by Residential Tenancies Officer, Jason Warham, dated June 5, 2018.

The Tenant sought a substantial abatement of rent and a direction to effect repairs. The Landlord countered seeking eviction. In his decision, Mr. Warham ordered vacant possession of the premises and directed the Tenant to pay arrears of rent. The tenant appeals. I have allowed a portion of Mr. Rad’s claim for a lack of hot water, otherwise I have disposed of the matter in a similar manner to Mr.

Warham with necessary modifications to reflect the later date and additional rent owing. ( 2 ) An appeal from the decision of a Residential Tenancies Officer is a de novo hearing based on the evidence presented before the Small Claims Court Adjudicator. The evidence presented usually consists of that presented to the Residential Tenancies Officer (in whole or in part) and any additional evidence the parties seek to adduce. It is not necessary to address the specific grounds of appeal in the course of this decision as the evidence and arguments are heard fresh by me.

Background ( 3 ) The Tenant, Samuel Rad and his wife, Rebekah, moved into the premises known as [address removed], Halifax, Nova Scotia. Ms. Rad was not named in either proceeding and therefore, she is not party to the judgment awarded. Mr. Rad lives in the premises with his three children. It is clear and unrefuted that Mr. Rad is substantially in arrears of rent. The issue for this Court is if those circumstances justify a termination of the tenancy. For the foregoing reasons, I find that it does. Evidence ( 4 ) Judith Anderson was assisted by her leasing manager, John Mills. Mr.

Mills testified the Tenants moved into the premises on March 8, 2018. The rent was $1800 and a security deposit of $900 was also provided. There is evidence Mr. Rad owed $476.66 for a power bill which was not put into his name. The Landlord received rent for March and $1000 for April. No further rent has been paid. ( 5 ) Mr. Mills testified he entered the premises with notice on August 21 and found the premises abandoned. The only items in the premises were dirty diapers. All papers and contents of the refrigerator were removed. ( 6 ) Samuel Rad testified to a number of alleged deficiencies.

Apparently, the landlords were in the process of renovating the premises in hopes of selling them. The floors and bathroom were not finished. He described the premises as in a poor state of repair. Mr. Rad testified that he liked that the premises had three bathrooms and a garage converted to a gym in the backyard. The hot water runs on an “on-demand” system, meaning the water heats up as required. There were problems with the system which were eventually rectified to the landlord’s satisfaction by July 7. Mr.

Rad testified that he is unable to use hot water in several locations throughout the house. (I find there is no evidence that Mr. Rad’s “problem” is unusual, i.e. that it is no worse than anywhere else). He indicated that his family was required to live in one of the bed and breakfasts owned by his company. He seeks compensation equal to the cost of renting at those places. Findings and Disposition Vacant Possession ( 7 ) I find the tenant failed to pay the rent for most of the tenancy. He is substantially in arrears which justifies an order for vacant possession of the premises.

I order the tenant to vacate the premises on or before September 10, 2018. Rent Due ( 8 ) The tenants have lived in the premises since March 2018. They have paid $2800 to date. ( 9 ) I find the tenant owes the landlord the following: Rent Owing (March to August) $10,800.00 Prorated rent to September 10, 2018 $ 600.00 Less: Rent Paid $ 2,800.00 Total Rent Owing $ 8,600.00 Hot Water ( 10 ) In reviewing the evidence, I find there was an inadequate amount of hot water at the premises until July 7.

I find the tenant had hot water, but less far less than was acceptable. ( 11 ) Statutory Condition 2 provides: ” Services - Where the landlord provides a service or facility to the tenant that is reasonably related to the tenant’s continued use and enjoyment of the premises such as, but not so as to restrict the generality of the foregoing, heat, water, electric power, gas, appliances, garbage collection, sewers or elevators, the landlord shall not discontinue providing that service to the tenant without proper notice of a

rental increase or without permission from the Director.” ( 12 ) In other words, a landlord must provide notice of a rental increase if a loss of service occurs. I find the reduced amount of hot water to be a loss of service. I would have been prepared to grant an early termination of the lease if sought by the tenant, but Mr. Rad wishes to remain in the premises. He seeks compensation equal to the cost to stay in his bed and breakfasts at a discount. To me a proper measure of damages is to provide a pro-rated reduction in rent for the time the problem existed. I find Mr.

Rad and his family suffered a lack of an adequate supply of hot water for a period of four months. I award $300 per month or $1200 to be set-off against the amount owing. ( 13 ) The tenant claims there is mold in the gym area which must be cleaned up. He tendered into evidence photographs of the ceiling of the gym. Mr. Rad has not provided sufficient evidence to establish the black showing is mold and not some other substance. More significantly, he has not shown it is a risk to his or his family’s health. I decline any award under this head of damages.

Power Bill ( 14 ) At the time the tenancy commenced, the premises were powered from two standards rather than one. Accordingly, the power was billed under two accounts by Nova Scotia Power. Mr. Rad put his name on one account rather than two. I find he has used power for his benefit which was paid by the landlord. As it has not been paid, these are subject to a late fee. There is no reference to a second account in any of the documentation. I find he is entitled to some credit as he did not know about the power bill. I award the landlord $400 for power.

Water ( 15 ) I allow the water bill of $137.55 Total Owing ( 16 ) I find the landlord has established liability for the following: Total Rent Owing $8,600.00 Power Bill (adjusted) $ 400.00 Water Bill $ 137.55 Directors Fee (Residential Tenancies) $ 31.15 Less: Security Deposit ($ 900.00) Less Abatement ($1200.00) Total Judgment $7693.70

Summary ( 17 ) In

summary, I find for the landlord and order the appeal allowed in part. The decision and Order of the Residential Tenancies Officer is varied and judgment is entered as set out below: ( 18 ) The tenant, Samuel Rad, and all other tenants, borders or other occupants, shall give vacant possession of the premises, known as [address removed], Halifax, NS, on or before September 10, 2018 at 11:59 pm; ( 19 ) The landlord, Judith Anderson shall have judgment against the tenant, Samuel Rad, in the amount of $7693.70; ( 20 ) The provisions of the lease and the Residential Tenancies Act shall continue to apply. The tenant remains liable for any damage to the premises upon the expiration of the tenancy.

( 21 ) An order shall be issued accordingly. Dated at Halifax, NS, on September 3, 2018; Gregg W. Knudsen, Adjudicator Original: Court File Copy: Landlord(

s) Copy: Tenant(s)