Butcher v. Westgate Builders and Rentals Ltd.

Butcher v. Westgate Builders and Rentals Ltd.

The lease granted the right to possess and thus the appellants were tenants under s.3(2)(b); their repudiation before possession converted the landlord's remedy into a claim for damages, not 'outstanding rent' as of the lease commencement, so s.12(5) required return of the security deposit and the landlord could not retain it to satisfy damages that were not outstanding rent.

Citation
2004 NSSM 1
Parties
Appellants/tenants: Susan J. Butcher & Judith E. Lawlor; Respondent/landlord: Westgate Builders & Rentals Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
15 November 2004
Procedural Posture
Residential Tenancies Appeal (small Claims Court) / Hearing De Novo (appeal of Residential Tenancies Order)
Outcome
Residential Tenancy Officer's order set aside; security deposit to be returned to appellants; landlord retains separate right to claim damages.
Legal Topics
Security Deposit, Repudiation of Lease, Mitigation of Damages, Statutory Interpretation, Termination of Lease
Source Language
English
Landlord and Tenant Contract Property Security Deposit Repudiation of Lease Mitigation of Damages Statutory Interpretation Termination of Lease

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Parties

Susan J. Butcher & Judith E. Lawlor

Appellants/tenants

Westgate Builders & Rentals Limited

Respondent/landlord

Procedural Posture

Residential Tenancies Appeal (small Claims Court) / Hearing De Novo (appeal of Residential Tenancies Order)

Legal Issues

  1. 1 Whether signees who never took possession are 'tenants' under the Act
  2. 2 Whether landlord could retain security deposit under s.12 for 'outstanding rent'
  3. 3 Whether repudiation by tenants produced an outstanding rent obligation or a claim for damages

Ratio Decidendi

The lease granted the right to possess and thus the appellants were tenants under s.3(2)(b); their repudiation before possession converted the landlord's remedy into a claim for damages, not 'outstanding rent' as of the lease commencement, so s.12(5) required return of the security deposit and the landlord could not retain it to satisfy damages that were not outstanding rent.

Court Disposition

Residential Tenancy Officer's order set aside; security deposit to be returned to appellants; landlord retains separate right to claim damages.

Orders

  • Set aside the Residential Tenancy Officer's order dated August 26, 2004
  • Respondent/Landlord must return the security deposit of $297.50 to Susan J. Butcher and Judith E. Lawlor