Pierce v. Westphal Court Limited, 2020 NSSM 13

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Pierce v. Westphal Court Limited , 2020 NSSM 13 ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Date: 2020-01-10 Docket: SCCH 494368 Registry: Halifax Between: William Pierce Appellant (Tenant) - and - Westphal Court Limited (a.k.a. Woodbine Park) Respondent (Landlord) Decision and Order Adjudicator : Eric K.

Slone Heard : In Halifax, Nova Scotia on January 7, 2020 Appearances : For the Appellant Tenant, Meghan Deveaux and Ryan Cutliffe Dalhousie Legal Aid For the Respondent Landlord, Heather Scott, property manager BY THE COURT: [ 1 ] The Landlord operates a land-lease community in Beaverbank, Nova Scotia, which in earlier times would have been referred to as a trailer park.

The community (“the park”) has been there for decades, including some period of time before this particular corporate Landlord owned the park. [ 2 ] This is an appeal by the Tenant from a decision of the Director of Residential Tenancies dated November 21, 2019, which decision held that William Pierce was not a “tenant” but rather only an “occupant” of the lot on which sits the manufactured home (to use the language of the Residential Tenancies Act ) in which he has lived his entire life of some 53 years.

[ 3 ] The finding that William Pierce was not a tenant has practical implications, which I will discuss later. But it also raises important issues of principle. [ 4 ] Sometime, most likely in the early to mid-1960's, Annie and Maurice Pierce placed their manufactured home on the subject lot in what is now known (and may always have been known) as Woodbine Park. The nature of the tenancy for the lot was always considered a verbal month to month lease. [ 5 ] The couple had two children, William in 1966 and Sandra sometime later. Maurice died in about 2010.

Annie died in February of 2019. [ 6 ] For convenience, I will refer to the various members of the Pierce family simply by their first names. [ 7 ] Although Sandra moved out of the manufactured home at some time, William has lived in it his entire life. After his father died, and as his mother aged he spent a good deal of his time looking after her.

William is on a disability pension through Community Services, and according to his evidence he was (at least for some years) contributing to the rent out of his personal income. [ 8 ] When Annie died, that left William as the sole occupant of the manufactured home. [ 9 ] Sandra was named as the executor of Annie’s will. She and William came to an agreement that William would solely own the manufactured home. [ 10 ] Soon after Annie’s death, the Landlord indicated that it did not regard William as a tenant, but merely as an occupant.

As such, it was going to treat the situation as the equivalent of a sale to a third party, requiring the consent of the Landlord. That led to an inspection and a direction to bring the manufactured home up to current standards, with a variety of repairs specified as well as a requirement that it have a water meter installed and begin paying for water usage.

It also sought to impose a small increase in rent. [ 11 ] None of these directions could have been imposed on an existing tenant, and in particular it would amount to an unauthorized rental increase to start charging a tenant for water usage, which had always been included in the base rent. [ 12 ] Because of its legal position, the Landlord took some care not to accept rental payments directly from William, but rather insisted that they be shown as coming from Annie’s estate. This was done, for a time.

William’s position now is that this is an artificial requirement that does not reflect his true status. [ 13 ] The Landlord’s position at Residential Tenancies and before this court, is that William has never been more, or other than, an “occupant” of the lot for his entire life. It points to a few documents as supporting evidence: a. In September of 1982, Annie and Maurice signed a one-page document which set out “park rules.” It may be noted that William and Sandra would have been minors at the time. b.

In or about 2010, shortly after Maurice died, a terse one-page document entitled “Update of Information” was filled out by hand and signed by Annie, which named herself as the Tenant, and named herself and William as occupants. c. The Landlord also points to an insurance document, presumably provided to the Landlord to prove that insurance was in place, which described the named insured as Annie Pierce.

[14] The legal representatives for William argue that notwithstanding what these documents may show, the substance of therelationship between William and the Landlord was that of landlord and tenant, not merely landlord and “occupant.” [15] I do not think the documents provided by the Landlord conclusively establish what it argues they do. It should be rememberedthat the lease was at all times a verbal lease, on a month to month basis. The Landlord cannot elevate the documents to the status of awritten lease.

The documents are, at best, clues as to the nature of the underlying, unwritten relationship. [16] The 1982 park rules document must be understood as a product of its time. The parents (Annie and Maurice) were obviously thetenants and the children (William and Sandra) would not have been considered tenants, if only because they were too young to enter intolegal contracts. [17] The 2010 “Update of Information” document is supportive of the Landlord’s

interpretation, but I am reluctant to give it muchweight. I very much doubt that Annie would have understood that she was precisely specifying the nature of her legal status, or that shewas in any way limiting William’s rights. [18] As for the insurance document, there is no real dispute that the owner of the manufactured home was Annie and as such it wasshe who mostly needed to have insurance. Ownership of the manufactured home is an issue quite separate from who is a tenant of the loton which the home sits.

Who is a tenant? [19] The original tenant of a residential premises may not be the ultimate tenant, as a result of legal machinations. [20] Whether or not a residential tenancy is property that can be inherited, and under what circumstances, is not a question that isbefore me. It appears that at least historically it could pass by inheritance, although by virtue of s.10E of the Residential Tenancies Actyearly or fixed term tenancies are now deemed to terminate automatically soon after the death of the tenant.

There is no such deemingprovision for a month to month tenancy, which can be terminated on a month’s notice after the tenant dies. [21] Clearly, tenancies can be assigned or sublet, with the consent of the landlord. The Landlord here attempted to characterize thesituation here as one where Annie’s estate became the tenant, by something akin to an assignment, which is why they insisted on onlyaccepting rent cheques that clearly stated that they were from the estate. [22] As pointed out by the Nova Scotia Court of Appeal in Prevost Estate v.

Prevost Estate 2013 NSCA 20 , [2013] N.S.J.74, estates are not legal persons. However, executors of estates are legal persons and, in some instances, could find themselves havingthe status of a legal “tenant.” [23] Typically, tenants are individuals - not other forms of legal persons - but as I observed in a different context involving this sameLandlord, in Bank of Montreal v.

Woodbine Park, 2016 NSSM 39 : [27] As such, for most purposes, it is clear that the Residential Tenancies Act has no application to arrangements made between(for example) two corporations, even if the subject of the agreement is for residential premises.

In my view, the Director of ResidentialTenancies would make an error to permit an application to Residential Tenancies to proceed if it involved such parties. [28] The small exception involves the wording of s.2(j), which includes in the definition of tenant not just an individual, but "his ortheir assigns and legal representatives." What this suggests to me is that a residential tenancy necessarily begins with an individual, butmay later involve another person who is the "assign" or "legal representative" of the original tenant.

As such, if a tenant makes anassignment to a corporation or other legal entity, that assignee may find itself to be a "tenant" within the meaning of the Act.

........... [32] The

interpretation that gives meaning to the expanded definition of tenant is this.

Section 3 provides that a residential tenancy may only come into existence when a landlord (which may be any form of person) enters into a residential tenancy (written, oral or deemed) with an individual. Once the tenancy is formed, the subsequent assignment by the tenant (to any form of person), or the assumption of responsibility by the original tenant's legal representative (such as an executor, trustee, guardian etc.) does not remove the tenancy from the Residential Tenancies regime. [ 24 ] As such it is possible to conclude that the tenancy vested in Sandra, as Annie’s executor, on Annie’s death.

But this still begs the question of whether or not William was a tenant in his own right. [ 25 ] In another, very recent Nova Scotia Small Claims Court case involving this same Landlord, Woodbine Park v. Scott Grant (unreported) December 23, 2019, Adjudicator Leigh Davis found that the son of a deceased tenant, who moved into the home after his father died, became a tenant by virtue of occupying the home and paying rent.

She stated at paragraph 6: [6] Although the Appellant argued that it “should not be forced to enter into a landlord tenant relationship” with Scott Grant, I find that such a relationship already exists. Scott Grant meets the definition of a tenant under

Section 2(

j) of the Residential Tenancies Act (the “ Act ”) and he has paid rent as defined in

Section 2(

g) of the Act . Pursuant to Section 3(2) of the Act , a landlord and tenant relationship is deemed to exist as Scott Grant has occupied the home since May 2018 and has paid rent. [ 26 ] That case was arguably weaker on the facts than the one involving William Pierce. Even so, I find it persuasive and am inclined to follow it. [ 27 ] Although I cannot say exactly when William became a tenant for legal purposes, I am satisfied that he was already a tenant before his mother died, and as such he remained a tenant after she died. The issue of ownership of the manufactured home is a separate one.

William did not own it until after his mother died, after which he bought it from her estate. What is an occupant? [ 28 ] The distinction between an occupant and a tenant is a tricky one. The Residential Tenancies Act does not define the term “occupant” and only uses the term once, as far as I can tell, in a context that is unhelpful. The Standard Form of Lease under the Residential Tenancies Regulations also has a

section that states: Occupants 2. Other adults or children who will occupy premises _________________________________________________ Only those tenants and occupants named are allowed to live in the premises without written consent of the landlord. [29] Even so, the term occupant is not defined. [30] Colloquially, the term occupant may be used to describe a variety of people, such as minor children of a tenant, roommates and

short-term boarders, who for a variety of reasons may not be suitable or eligible to be tenants, or who do not intend to assume the legal obligations of a tenant. However, I think the term is unsuited to describe someone who has lived in a residential premises for his whole life of 53 years, contributing to the payment of rent from his own resources. It is particularly inapt when the lease has never been put in writing, and the facts support a conclusion that an individual is, for all intents and purposes, a tenant. Specifically, he occupies the lot and he has paid rent. [31] I am satisfied that William meets either of the

definitions of tenant in

section 2 (

j) and 3 (2) of the Residential Tenancies Act : 2 (j) “tenant” means (

i) an individual who has paid or agreed to pay rent to occupy residential premises, (ii) an individual who is permitted to occupy residential premises under an assignment or sublet to which the landlord has consented under

Section 9B, and (iii) an heir, assign or personal representative of an individual referred to in subclause (

i) or (ii); 3

(2) For the purposes of subsection (1), the relation of landlord and tenant is deemed to exist in respect of residential premises between an individual and a person when an individual (

a) possesses or occupies residential premises and has paid or agreed to pay rent to the person; (

b) makes an agreement with the person by which the individual is granted the right to possess or occupy residential premises in consideration of the payment of or promise to pay rent; (

c) has possessed or occupied residential premises and has paid or agreed to pay rent to the person. [32] I understand that there are issues of outstanding rent, arising from the Landlord’s hesitancy to accept rent while these issues were being decided. I am confident that William, or his representatives, will correct any deficiency and put the tenancy into good standing. Should there be an issue in regard to that, I will retain jurisdiction to make a further order. Order [33] Accordingly, I am allowing the appeal and the order of the Director of Residential Tenancies is vacated.

In its place I am declaring that William Pierce is a tenant of the Landlord, and that it is accordingly unlawful for the Landlord to impose conditions upon him as if he were a purchaser of the manufactured home seeking to become a tenant, and requiring the consent of the Landlord to assume the tenancy. William Pierce is entitled to be treated as having been a co-tenant before the death of his mother, and the sole tenant since the death of his mother. Eric K. Slone, Adjudicator