Mizrachi v. Lenihan

Mizrachi v. Lenihan

Because the Landlord did not file an application to retain the security deposit within the ten-day period mandated by s.12(7) of the Residential Tenancies Act, the Adjudicator was bound to order return of the deposit; the statutory time limit is mandatory and bars withholding the deposit though the landlord may bring a separate claim for damages within the statutory limits.

Citation
2021 NSSM 3
Parties
Appellant/landlord: Danny Mizrachi; Respondent/tenant: Patrick Lenihan
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
5 February 2021
Procedural Posture
Small Claims Court Appeal From Director's Order / Appeal Decision
Outcome
Appeal dismissed; Director's decision affirmed.
Legal Topics
Security Deposit, Time Limits, Return of Deposit, Damages, Personal Liability, Penalties
Source Language
English
Residential Tenancies Landlord and Tenant Law Statutory Interpretation Civil Procedure Security Deposit Time Limits Return of Deposit Damages +2 more

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Parties

Danny Mizrachi

Appellant/landlord

Patrick Lenihan

Respondent/tenant

Procedural Posture

Small Claims Court Appeal From Director's Order / Appeal Decision

Legal Issues

  1. 1 Whether landlord's failure to apply to retain security deposit within ten days bars withholding the deposit
  2. 2 Whether landlord may assert claims at hearing without filing timely application under s.12(7)
  3. 3 Proper interpretation of s.12(5)-(7) and the mandatory nature of the ten-day time limit

Ratio Decidendi

Because the Landlord did not file an application to retain the security deposit within the ten-day period mandated by s.12(7) of the Residential Tenancies Act, the Adjudicator was bound to order return of the deposit; the statutory time limit is mandatory and bars withholding the deposit though the landlord may bring a separate claim for damages within the statutory limits.

Court Disposition

Appeal dismissed; Director's decision affirmed.

Orders

  • Decision of the Director dated November 16, 2020 is affirmed.
  • Landlord shall pay to the Tenant the sum of $825.00.