Georgina Stanhope v. Dale Kilburn, 2017 NSSM 17

SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Stanhope v. Alderwood Trailer Village, 2017 NSSM 17 SCCH No.461494 BETWEEN: Georgina Stanhope and Dale Kilburn Appellants – and – Alderwood Trailer Village Ltd Respondent Adjudicator: Augustus Richardson, QC Heard: May 30 th , 2017 Decision: June 15 th , 2017 Appearances: Georgina Stanhope, for the appellants Heather Scott, for the respondent DECISION [ 1 ] This is an appeal of a Residential Tenancy Order dated February 28, 2017. [ 2 ] The appellants owned a mini home located on land leased from the respondent landlord (a trailer park). The appellants sold the mini home.

The landlord insisted that before it would accept the purchasers as tenants the appellants would have to put vinyl siding on their cedar-sided shed. The cost of that siding was $1,079.17. The appellants paid it under protest. After the sale was completed they filed a claim against the respondent (“Alderwood”) for that cost. The Residential Tenancy Officer dismissed the claim on the ground that Alderwood was not responsible for the cost. Based on the facts and reasons set out below I do not agree. The Facts [ 3 ] The appellants purchased their mini home in 2007.

It was at the time located in the Alderwood Trailer Village. The purchase included a cedar-sided shed that was on the leased property. The mini home was owned by the appellants, but it rested on land owned by Alderwood and leased by it to the mini home owner.

[ 4 ] On or about the time the appellants purchased the mini home they entered into a lease with Alderwood on June 18, 2007: Ex.2. The lease contained a number of relevant terms: 5.6 Tenant(

s) is responsible to maintain the appearance of his/her home and lot at all times. The yard must be free of car parts, litter, garbage, junk or other unsightly condition. 6.1 Before any sale or rental agreement is finalized, prospective buyers or renters of the home must be approved in writing by the Landlord to occupy and/or sublet the home site. This rule includes the situation where the Tenant is renting the home to another person. 6.3 Before the Landlord approves sub-lease to a buyer or renter the landlord may conduct an exterior inspection of the home and site.

If any violation of these Rules or the Residential Tenancies Ac is found, the Landlord may refuse to accept the applicant for sub-lease until all violations have been corrected. The Tenant hereby acknowledges that such a refusal by the Landlord will be valid reason for withholding of consent to sub-lease by the landlord. 6.4 All homes sold or rented on Community premises must comply with COMMUNITY STANDARDS (SCHEDULE “A”) before the sale or rental agreement is finalized. [ 5 ] Attached to the lease agreement as

Schedule “A” were the “Community Standards.” The relevant terms were as follows: Sheds 1.2 Size may be no larger than 10' x 10', 8' high plus peak, constructed of new lumber, pitched or barn style, shingled roof, vinyl siding only. 1.8 Sheds not in compliance with Community Standards will have to be repaired or removed from the park.

Note Any home sold in the Community must conform to the Homes Standards before the sale is complete (a one (1) year grace period will be given to an existing Tenant, from the date the Tenant receives a copy of the Home Standards. [ 6 ] The appellant Ms Kilburn signed the lease and the Community Standards. [ 7 ] At the time of the purchase in 2007 the shed that was on the property subject to the lease was cedar-sided. Alderwood completed a “Home for Resale – Lot Inspection” on June 15, 2007.

The report contains the following notation: “Storage Shed: – 10' x 10' cedar shingles stained to match deck, appears to be in order.” A photo taken in 2007 supports this description: Appellants’ Exhibits, Tab 5. No objection was taken by Alderwood at the time of the appellants’ purchase to the shed—or to the fact that it was not vinyl sided. [ 8 ] In or about December 2011 Alderwood was sold to new owners. [ 9 ] A lot inspection was carried out by Alderwood in June 2014.

The inspection report was a standard form that listed various potential issues on the property, and what if anything had to be done (repair, replace, paint and so on). The form contained a line item for “storage shed,” but there was no indication that anything had to be done to the shed: Appellants Exhibit, Tab 2. [ 10 ] On December 27, 2015 the appellants entered into an agreement with Ms Shelly Uwins to sell to her their mini home and shed. The proposed purchaser and new tenant—Ms Uwins—had to be approved by Alderwood.

[ 11 ] In mid April 2016 Alderwood carried out a “Home for Resale – Lot Inspection.” The inspection form has a number of copies. A number of repair items were listed. Item 3 on the form was “storage shed.” To the right were circled the words “Install Vinyl Siding.” [ 12 ] Ms Scott took the position that Alderwood was entitled to insist on compliance with the Community Standards; and that the sale, and lease to the proposed purchaser, could not go be approved unless vinyl siding was installed on the shed. [ 13 ] A copy of the form was also given to Ms Unwins.

Handwritten on the form was the following: “April 13/16 - All items not complete are to be done by June 15/16. By signing below become responsibility of purchaser.” It was signed by Ms Scott for Alderwood, and by Ms Unwins. Ms Scott testified that this copy of the form was given directly to Ms Unwins. The appellants were not given a copy, nor were they aware that the purchaser had assumed any responsibility for the shed’s siding. [ 14 ] On the same day—April 13, 2016—the appellants and Ms Unwin signed an amended to their purchase and sale agreement.

That amendment required the appellants “to install vinyl siding to existing cedar shed on property that will belong to buyer.” It also noted that “[v]inyl installation has been requested by Landlord of Alderwood Trailer Park to match mini home.” [ 15 ] In the end, there is no question but that the appellants ended up having to pay $1,079.17 to have their shed sided with vinyl before the sale could be completed. They paid that amount, and did that siding, under protest.

The only way they could complete the sale —that is, the only way they could get Alderwood to consent to accept the new leasee—was to pay for the new siding. [ 16 ] Based on the facts of this case it is not necessary for me to consider whether a landlord of a trailer park is entitled to impose conditions of the kind in issue on a proposed leasee of its building site lot. It is enough to conclude, as I do, that on the facts of this case the landlord was estopped from insisting on compliance with the siding condition set out in its Community Standards. [ 17 ] The appellants purchased their mini home in 2007.

The shed that was part of the purchase was at the time sided with cedar. Alderwood did not object at that time. It did not insist that the seller install vinyl siding. Nor did it make its acceptance of the appellants in 2007 as new tenants conditional on their (or anyone) changing the shed’s siding. The appellants can be taken to have relied upon Alderwood’s apparent acceptance of the cedar siding on the shed notwithstanding that it violated the requirements of the Community Standards. The appellants relied on that apparent acceptance by Alderwood that the cedar-siding was acceptable.

Had Alderwood insisted at that time of purchase on vinyl siding the appellants could have backed out of the purchase, or they could have insisted that the seller bear the cost of vinyl siding. [ 18 ] This situation was not changed just because the ownership of Alderwood changed. The new owners stepped into the shoes of the old. The estoppel that bound the former owner passed to the new owner.

The fact that Alderwood raised no objection to the shed’s cedar siding in its 2014 inspection report adds support to this conclusion. [ 19 ] All of this means that Alderwood was not entitled to insist on compliance with the vinyl siding term. It waived its ability to insist on compliance when it accepted the appellants in 2007 as new tenants without raising any concern about the lack of vinyl siding. It was accordingly estopped from relying on that condition. That being the case it was not entitled to hold the appellants to ransom when they wanted to sell their mini home (and shed).

If Alderwood wanted the shed to be sided with vinyl on these facts then it should have borne the cost itself. I am accordingly satisfied that Alderwood should pay the appellants the cost of siding the shed with vinyl, and I will make an order to that effect. DATED at Halifax, Nova Scotia this 15 th day of June, 2017 Augustus Richardson, QC Adjudicator