Butcher et al. v. Westgate Builders and Rentals Ltd., (2004) 238 N.S.R.(2d) 283 (SmCl)

• Court: Small Claims Court of Nova Scotia (Canada)
• Case Date: November 09, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 238 N.S.R.(2d) 283 (SmCl)

Butcher v. Westgate Builders (2004), 238 N.S.R.(2d) 283 (SmCl);

    757A.P.R. 283

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. NO.038

Susan J. Butcher and Judith E. Lawlor (appellants/tenants) v. Westgate Builders and Rentals Limited (respondent/landlord)

(Claim No. 230150)

Indexed As: Butcher et al. v. Westgate Builders and Rentals Ltd.

Nova Scotia Small Claims Court

Richardson, Adjudicator

November 15, 2004.

Summary:

On June 20, 2004, the tenants signed a lease with the landlord which was to commence on July 1, 2004. The tenants gave a security deposit of $297.50. The tenants did not take possession of the apartment. On June 22, 2004, the tenants informed the landlord that they would not be taking the apartment. The landlord immediately attempted to rent the apartment, which it was able to do so for August 1, 2004. The tenants applied to the Residential Tenancies Office for termination of tenancy, payment of money and disposition of the security deposit. The landlord applied for the security deposit. The Tenancy Officer found that the tenants owed the landlord rent for the month of July and that the landlord could retain the security deposit. The tenants appealed.

The Nova Scotia Small Claims Court allowed the appeal.

Landlord and Tenant - Topic 3

General principles - Tenancy or tenant defined - On June 20, 2004, the tenants signed a lease with the landlord which was to commence on July 1, 2004 - The tenants gave a security deposit of $297.50 - The tenants did not take possession of the apartment - On June 22, 2004, the tenants informed the landlord that they would not be taking the apartment - The landlord immediately attempted to rent the apartment, which it was able to do so for August 1, 2004 - A Tenancy Officer found that the tenants owed the landlord rent for the month of July and that the landlord could retain the security deposit - The tenants appealed - They argued that while they had signed the lease, they were not and never were "tenants" within the meaning of s. 3(2)(b) of the Residential Tenancies Act because they had never taken possession of the apartment - The Nova Scotia Small Claims Court rejected the argument - Section 3(2)(b) applied to a situation where an individual was granted "the right to possess" a residential premises, notwithstanding that the right might not be exercised until a future date - See paragraphs 15 to 16.

Landlord and Tenant - Topic 3983

Rent - Security deposit - Claims allowed against deposit (incl. return of deposit) - On June 20, 2004, the tenants signed a lease with the landlord which was to commence on July 1, 2004 - The tenants gave a security deposit of $297.50 - The tenants did not take possession of the apartment - On June 22, 2004, the tenants informed the landlord that they would not be taking the apartment - The landlord immediately attempted to rent the apartment, which it was able to do so for August 1, 2004 - A Tenancy Officer found that the tenants owed the landlord rent for the month of July and that the landlord could retain the security deposit - The tenants appealed - They argued that a landlord who wanted to retain a security deposit had to comply with the provisions of s. 12 of the Residential Tenancies Act and that had not been done - Section 12(5) provided that the security deposit "shall be" returned to the tenant within 10 days of the termination of the lease - The Nova Scotia Small Claims Court allowed the appeal - The provisions of s. 12 were mandatory - Section 12(6) permitted a landlord to retain the security deposit when there was property damage - There was no property damage where the tenants had never occupied the apartment - See paragraphs 19 to 20.

Landlord and Tenant - Topic 3983

Rent - Security deposit - Claims allowed against deposit (incl. return of deposit) - On June 20, 2004, the tenants signed a lease with the landlord which was to commence on July 1, 2004 - The tenants gave a security deposit of $297.50 - The tenants did not take possession of the apartment - On June 22, 2004, the tenants informed the landlord that they would not be taking the apartment - The landlord immediately attempted to rent the apartment, which it was able to do so for August 1, 2004 - A Tenancy Officer found that the tenants owed the landlord rent for the month of July and that the landlord could retain the security deposit - The tenants appealed - They argued that a landlord who wanted to retain a security deposit had to comply with the provisions of s. 12 of the Residential Tenancies Act and that had not been done - Section 12(5) provided that the security deposit "shall be" returned to the tenant within 10 days of the termination of the lease - The Nova Scotia Small Claims Court allowed the appeal - The provisions of s. 12 were mandatory - Section 12(6) permitted a landlord to retain the security deposit when "there is outstanding rent" - As of June 22, 2004, the tenants had repudiated the lease - The landlord accepted the repudiation - Accordingly, there was no rent owing by the tenants and the landlord only had a right of action to claim damages for breach of the lease - See paragraphs 21 to 25.

Words and Phrases

Tenant - The Nova Scotia Small Claims Court discussed the meaning of the word "tenant" as used in s. 3(2)(b) of the Residential Tenancies Act, R.S.N.S. 1989, c. 401- See paragraphs 15 to 16.

Statutes Noticed:

Residential Tenancies Act, R.S.N.S. 1989, c. 401, sect. 3(2)(b) [para. 15]; sect. 12(6) [para. 18].

Counsel:

Susan J. Butcher and Judith E. Lawlor, on their own behalf;

Sadie Francis, for the respondent/landlord, Westgate Builders and Rentals Ltd.

This appeal was heard on November 9, 2004, before Richardson, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision at Halifax, Nova Scotia, on November 15, 2004.