Plazacorp Retail Properties Ltd. v. Perkins Health and Safety Ltd.

Plazacorp Retail Properties Ltd. v. Perkins Health and Safety Ltd.

The landlord was negligent by removing protective awning and by failing to take reasonable steps to remedy repeated water ingress and recurring sewer backups despite notice; lease exclusion and insurance clauses did not bar liability for that neglect; tenant proved damages for both premises and was entitled to set off those damages against rent owing, resulting in a net award to the tenant of $1,243.30.

Citation
2007 NSSM 30
Parties
Claimant: Plazacorp Retail Properties Ltd.; Defendant; Claimant by Counterclaim: Perkins Health and Safety Limited c.o.b. as Sunnyspot Tanning and Atlantic Home Health Care Supplies; Defendant; Claimant by Counterclaim: Helen T. Perkins
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
9 July 2007
Procedural Posture
Small Claims Court Landlord and Tenant Dispute / Decision on Merits After Trial and Counterclaim
Outcome
Counterclaim allowed in part; tenant awarded damages and entitled to offset against rent; net judgment in favor of tenant
Legal Topics
Lease Interpretation, Exclusion Clauses, Duty to Repair and Maintain Common Areas, Negligence, Damages for Property Loss, Set Off/counterclaim, Insurance Deductible and Subrogation
Source Language
English
Landlord and Tenant Contract Tort (negligence) Property Law Insurance/subrogation Lease Interpretation Exclusion Clauses Duty to Repair and Maintain Common Areas +4 more

Case Brief

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Parties

Plazacorp Retail Properties Ltd.

Claimant

Perkins Health and Safety Limited c.o.b. as Sunnyspot Tanning and Atlantic Home Health Care Supplies

Defendant; Claimant by Counterclaim

Helen T. Perkins

Defendant; Claimant by Counterclaim

Procedural Posture

Small Claims Court Landlord and Tenant Dispute / Decision on Merits After Trial and Counterclaim

Legal Issues

  1. 1 Whether the landlord was negligent in removing an awning and failing to remedy resulting water ingress
  2. 2 Whether the landlord was negligent in allowing recurring sewer backups and failed to take reasonable preventative maintenance steps
  3. 3 Whether lease exclusion and insurance clauses absolved the landlord of liability

Ratio Decidendi

The landlord was negligent by removing protective awning and by failing to take reasonable steps to remedy repeated water ingress and recurring sewer backups despite notice; lease exclusion and insurance clauses did not bar liability for that neglect; tenant proved damages for both premises and was entitled to set off those damages against rent owing, resulting in a net award to the tenant of $1,243.30.

Court Disposition

Counterclaim allowed in part; tenant awarded damages and entitled to offset against rent; net judgment in favor of tenant

Orders

  • Tenant awarded damages for Atlantic premises: $2,833.65
  • Tenant awarded damages for Sunnyspot premises: $3,046.25