Bowering v. Higgins

Bowering v. Higgins

The landlord's act of changing the locks and thereby denying access terminated the lease on the date access was denied; the tenant had not abandoned the premises as she had paid rent and sought access, so the landlord could not recover charges for lock change, utilities hookup, phone/travel or unproven costs. Recoverable amounts were limited to proven carpet damage ($400.00) and cleanup ($324.15); net amounts were calculated and the adjudicator accepted the parties' agreement to set off rent against amounts due.

Citation
2005 NSSM 38
Parties
Appellant/tenant: Ginette Bowering; Respondent/landlord: Barbara D. Higgins
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
25 February 2005
Procedural Posture
Appeal From Director of Residential Tenancies Decision / Hearing (trial De Novo on Appeal)
Outcome
Appeal allowed in part
Legal Topics
Lockout, Lease Termination, Abandonment, Security Deposit, Damages for Property, Mitigation, Setoff
Source Language
English
Residential Tenancies Landlord and Tenant Law Contract Property Lockout Lease Termination Abandonment Security Deposit +3 more

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Parties

Ginette Bowering

Appellant/tenant

Barbara D. Higgins

Respondent/landlord

Procedural Posture

Appeal From Director of Residential Tenancies Decision / Hearing (trial De Novo on Appeal)

Legal Issues

  1. 1 Whether the landlord validly terminated the lease by changing the locks (lockout)
  2. 2 Whether the tenant abandoned the premises
  3. 3 Whether the landlord may recover charges for lock change, utilities hookup, phone/travel, cleaning, carpet damage and solicitor/costs

Ratio Decidendi

The landlord's act of changing the locks and thereby denying access terminated the lease on the date access was denied; the tenant had not abandoned the premises as she had paid rent and sought access, so the landlord could not recover charges for lock change, utilities hookup, phone/travel or unproven costs. Recoverable amounts were limited to proven carpet damage ($400.00) and cleanup ($324.15); net amounts were calculated and the adjudicator accepted the parties' agreement to set off rent against amounts due.

Court Disposition

Appeal allowed in part

Orders

  • Recoverable charges limited to carpet damage $400.00 and cleaning $324.15; all other claimed charges (water/power hookup, lock change, phone, travel) disallowed
  • Claimed costs of $1,750.00 not proven and disallowed