Date Issued: February 25, 2020

File: SC-2019-009045

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Du v. Abboud, 2020 BCCRT 214

Between:

NAN DU

Applicant

And:

GEORGE ABBOUD

Respondent

REASONS FOR DECISION
Tribunal Member:	Rama Sood

INTRODUCTION

1.      This is a dispute between roommates. The applicant, Nan Du, says she rented a room from the respondent, George Abboud, and asked her to move out before the end of the lease term. She seeks $2,126.67 that she paid for a security deposit, key and FOB deposits, and her contribution to the respondent’s insurance.

2.      The respondent denies the applicant’s claims and says she breached the lease because she did not clean up after herself, clogged the shower drain with hair, and failed to give notice before moving out which caused him to lose rental revenue. The respondent did not file a counterclaim.

3.      Both parties are self-represented.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the tribunal may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the tribunal considers appropriate.

8.      Generally, the tribunal does not take jurisdiction over residential tenancy disputes, which are decided by the Residential Tenancy Branch (RTB). However, the Residential Tenancy Act does not apply to this dispute because the RTB refuses jurisdiction over ‘roommate disputes’, such as this one. For that reason, I find the dispute is within the tribunal’s small claims jurisdiction as set out in section 118 of the CRTA.

ISSUE

9.      The issue in this dispute is whether the respondent is required to reimburse the security deposit, key and FOB deposit, and pro-rated insurance.

EVIDENCE AND ANALYSIS

10.   In a civil claim like this one, the applicant must prove her claim on a balance of probabilities. This means the tribunal must find it is more likely than not that the applicant’s position is correct.

11.   I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision.

12.   On April 15, 2019 the parties signed a lease for the applicant to rent a room in the respondent’s loft for 1 year starting from April 29, 2019. Both parties submitted a copy of the lease. The difference between the two copies is that the respondent’s copy contains several handwritten notations. Since there is no evidence before me that the applicant agreed to these alterations I rely solely on the applicant’s copy for the purposes of this decision.

13.   The relevant lease terms are:

a.    The rent was $1,585 per month, due on the 25th day of the preceding calendar month.

b.    The respondent could terminate the lease with either at least one day’s notice if the applicant breached any provision of the lease or with more than one day’s notice without cause or reason.

c.    The applicant had to give at least 45 days’ notice to terminate the lease without cause or reason.

d.    The applicant was required to pay the respondent a $1,585 security deposit. The respondent had to return the security deposit at the end of the tenancy but could deduct costs of repairs and damage, including unplugging toilets, sinks, and drains.

e.    The applicant was responsible for insuring the respondent’s contents for damage or loss.

f.     The applicant agreed to clean the room and bathroom and to assist the respondent once a week with cleaning the main floor kitchen and common area.

14.   The parties agree that prior to moving in the applicant paid the respondent $1,585 for the first month’s rent plus the $1,585 security deposit. At the respondent’s request the applicant also paid him a $100 key deposit, a $200 FOB deposit, and $290 for the applicant’s annual share of the respondent’s insurance. I find the applicant erroneously stated in her claim that she paid the respondent $250 for the insurance and the evidence and her calculations shows the correct amount is $290.

15.   The lease did not state that the applicant had to pay a key or FOB deposit. I find that the respondent was not entitled to charge these deposits under the lease terms and they should be refunded to the applicant.

16.   As for the insurance, the respondent says that he added the applicant to his insurance policy since she did not purchase insurance. The applicant says she did not receive an invoice or a copy of the insurance policy or any proof that she was added to an insurance policy. I find there is no proof that the respondent actually added the applicant to his insurance policy. I also find that the respondent was not entitled to charge the applicant a portion of his insurance costs under the lease terms.

17.   The relationship between the parties quickly disintegrated after the applicant moved in. It appears from the emails provided by the applicant that things came to a head on June 13, 2019 and the respondent verbally asked the applicant to move out by June 15.

18.   The next day the respondent emailed the applicant that he felt violated because the applicant walked into his “room” unannounced and was not comfortable continuing the tenancy. He also complained that the applicant was not cleaning the hair she shed in the kitchen. Although he stated that he had photographs, he did not submit any as evidence. Contrary to his verbal statement the previous night, he wrote that the applicant had to move out by June 28 or earlier if she “acted up” again.

19.   The applicant described the respondent’s “room” as an open area in the loft that she had to walk through to access the laundry facilities and the respondent has not denied this description. The applicant did not deny that she shed hair but pointed out that the respondent’s 3 dogs did as well.

20.   The applicant says she agreed to the move out date because she was intimidated by the respondent and felt unsafe. The applicant ended up moving out on June 25, 2019. When she moved out the applicant returned the key and FOB to the respondent. The respondent admitted that he did not refund either the key or FOB deposits to the applicant.

21.   The respondent says that the applicant did not want to continue with the tenancy because she could not afford the rent after she changed her job. The respondent says he told the applicant that she had to provide a 30 day cancellation notice. I find that the respondent has failed to prove that the applicant breached the terms of the lease. I also find that the respondent’s own emails prove that he was the one who terminated the lease. Consequently, I find that the applicant was not required to give notice to the respondent.

22.   Before moving out the applicant requested a refund from the respondent of $1,885 for the security, key, and FOB deposits and $241.67 for 10 of the 12 months of the respondent’s insurance that she paid. The applicant made numerous unsuccessful attempts to contact the respondent for a refund.

23.   The respondent sent the applicant a Security Deposit Refund Form dated October 21, 2019 in which he stated the applicant owed him $2,572.50 after deducting cleaning penalties, lost rent, and a plumber’s invoice from the deposits that the applicant had paid. He also stated that the balance was payable within 14 days with “2.5% per month” until the amount was paid in full (which I interpret as an interest rate of 2.5%).

24.   I find that the respondent was not entitled to any of the deductions listed in the Security Deposit Refund Form for the following reasons:

a.    The respondent deducted $650 for cleaning the bathroom, kitchen, common area, bedroom, glass door, and laundry room 13 times. He also deducted $250 for 5 instances of not cleaning the common area on Saturdays and for a move out report/move in report. Yet, the respondent did not provide specific details of any of the 18 cleaning related incidents or proof that the various areas of the loft were not cleaned by the applicant (such as dates, locations, or photographs). It appears from the amounts involved that the respondent charged $50 per incident. Although the lease required the applicant to assist the respondent each week with cleaning the kitchen and common area, I find there is no provision in the lease for any fees or penalties for not doing so.

b.    The respondent deducted $337.50 for a plumber/general contractor invoice. The respondent did not state why he had to hire a plumber. I infer it was because of his claim that the applicant’s hair clogged the shower drain and did not provide a copy of the invoice. I find that the respondent failed to prove that he incurred any plumbing expenses related to the applicant’s tenancy.

c.    The respondent deducted $3,170 for 2 months of lost rental income. The lease does not state that the respondent could charge for loss of rental revenue if it was terminated by either party. Also, the respondent did not provide any evidence that he was unable to find another roommate for 2 months (such as advertisements or a new lease). I find the respondent failed to prove any losses.

d.    The respondent says that the insurance is non-refundable under the terms of lease. Although the lease states that the applicant is responsible for insuring the respondent’s belongings, I find that the applicant was not obligated under the lease to contribute towards the cost of the respondent’s insurance and only did so at the respondent’s request. Further, the respondent did not provide any proof that the insurance was non-refundable. I reject the respondent’s claim.

25.   Given that I find in the applicant’s favor, there is no need to address the applicant’s allegation about a Form K.

26.   Based on my reasons, I find there is no legal basis entitling the respondent to keep the deposits or the balance of the insurance paid by the applicant. Therefore, I find the respondent must pay the applicant $2,126.67.

27.   The Court Order Interest Act applies to the tribunal. The applicant is entitled to pre-judgment interest on the amount of $2,126.67 from June 28, 2019, which is the date the applicant was entitled to the refund, to the date of this decision. This equals $27.50.

28.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $125 in tribunal fees.

29.   Although the applicant claimed dispute-related expenses, she did not provide an amount or receipts and so I dismiss this claim.

ORDERS

30.   Within 14 days of the date of this order, I order the respondent, George Abboud, to pay the applicant, Nan Du, a total of $2,279.17, broken down as follows:

a.    $1,585 as reimbursement for the security deposit,

b.    $300 as reimbursement for the key and FOB deposits,

c.    $241.67 as reimbursement for the payment towards the respondent’s insurance,

d.    $27.50 in pre-judgment interest under the Court Order Interest Act, and

e.    $125 for tribunal fees.

31.   The applicant is further entitled to post-judgment interest, as applicable.

32.   Under section 48 of the CRTA, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

33.   Under section 58.1 of the CRTA, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.