Katz (Melvyn L.) Ltd. v. Michelsen and Hall, (1980) 5 Man.R.(2d) 234 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 12, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 5 Man.R.(2d) 234 (CoCt)

Katz Ltd. v. Michelsen (1980), 5 Man.R.(2d) 234 (CoCt)

MLB headnote and full text

Melvyn L. Katz Ltd. v. Michelsen and Hall

Indexed As: Katz (Melvyn L.) Ltd. v. Michelsen and Hall

Manitoba County Court

Jewers, C.C.J.

February 12, 1980.

Summary:

This headnote contains no summary.

Equity - Topic 4626

Election - When applicable - Selection between alternative but inconsistent rights - The defendants gave notice to the plaintiff that they wished to terminate their tenancy, stating that the building was not habitable and the electric wiring was defective - The defendants also contacted the rentalsman pursuant to s. 119 of the Landlord and Tenant Act, R.S.M. 1970, c. L-70, with respect to the defects in the building, but did not inform him that they had given notice to terminate the tenancy - The defendants subsequently moved out of the building and the plaintiff brought an action for loss of one month's rental, while the building was not tenanted, and for damages - The defendants submitted that they were entitled to terminate the lease, because the plaintiff was in breach of its obligations under s. 98 of the Landlord and Tenant Act to maintain the premises in a good state of repair - The Manitoba County Court allowed the plaintiff's action - The court stated that giving notice to terminate the tenancy under s. 98 of the Act contemplates that the tenancy will end, and the notification of the rentalsman under s. 119 of the Act contemplates that the tenancy will continue - By notifying the rentalsman and permitting the plaintiff to repair the deficiencies complained of, the defendants elected to pursue their rights under s. 119 of the Act and could not be heard to say that they were also entitled to their rights under s. 98 of the Act - See paragraphs 11 to 17.

Landlord and Tenant - Topic 6684

Termination, forfeiture and re-entry - Notice of termination - Time for giving - The defendants entered into a lease with the plaintiff with a term to commence on May 1, 1979, and to expire on April 30, 1980, with a monthly rental payable on the first day of each month during the currency of the lease - The defendants gave notice to the plaintiffs that they wished to terminate their tenancy in the third week of June, stating that the building was not habitable and the electric wiring was defective - The defendants moved out of the premises on August 1, 1979, and the plaintiff was not able to secure other tenants until September 1, 1979 - The plaintiff brought action for the loss of one month's rental, while the building was not tenanted, and for damages - The defendants submitted that they were entitled to terminate the lease because the plaintiff was in breach of its obligations under s. 98 of the Landlord and Tenant Act, R.S.M. 1970, c. L-70, to maintain the premises in a good state of repair - The Manitoba County Court allowed the plaintiff's action - The court held that the defendants were not entitled to rely upon their notice to terminate the lease under s. 98 of the Landlord and Tenant Act, because the notice to terminate must be given on the last day of any rental period - Because payment periods were monthly, the last day of the rental payment period was the last day of the month - See paragraphs 18 to 20.

Statutes Noticed:

Landlord and Tenant Act, R.S.M. 1970, c. L-70, sect. 98 [paras. 11, 12, 14, 16 to 20]; sect. 119 [paras. 13 to 17].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 16, p. 1013, para. 1508.

Counsel:

N. Shuckett, for the plaintiff;

G.A. Cudney, for the defendants.

This case was heard before JEWERS, C.C.J., of the Manitoba County Court.

The decision of JEWERS, C.C.J., was delivered on February 12, 1980: