This is the written decision of the Arbitrator re#1 Hoarder Eviction
All personal references are removed and only Initials are used to identify individuals.
This is why I took this job... so I can see what is needed and expected when faced
with a tough situation as an owner.... so when It happens to my own properties,
I can respond in an appropriate manner.
The tenant did not attend this hearing, although I left the teleconference hearing
connection open until 10:08 am in order to enable the tenant to call into the hearing
scheduled to start at 9:30 am. The landlord was represented by two agents (“WF” and
“SW”). Both were given a full opportunity to be heard, to present affirmed testimony, to
make submissions and to call witnesses. I confirmed that the correct call-in numbers and
participant codes had been provided in the Notice of Dispute Resolution Proceeding. I
used the teleconference system to confirm that WF, SW, and I were the only ones who
had called into the hearing.
WF testified he served that the tenant with the notice of dispute resolution package and
supporting documentary evidence by posting them on the door of the rental unit on June
23, 2022. He submitted proof of service form (RTB-9) and a photo of an envelope taped
to the door of the rental unit confirming this. I find that the tenant is deemed served with
these documents on June 26, 2022, three days after WF posted them, in accordance
with sections 88, 89, and 90 of the Act.
The tenant did not provide the landlord or the Residential Tenancy Branch with any
documentary evidence in response to the landlord’s application.
Issues to be Decided
Is the landlord entitled to:
1) an order of possession;
2) recover the filing fee;
Background and Evidence
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While I have considered the documentary evidence and the testimony of the parties, not
all details of their submissions and arguments are reproduced here. The relevant and
important aspects of the parties’ claims and my findings are set out below.
The owner of the rental unit and the tenant entered into a written tenancy agreement
starting March 15, 2018. Monthly rent is $1,050 and is payable on the first of each
month. The tenant paid the landlord a security deposit of $525, which the landlord
continues to hold in trust for the tenant.
The landlord named on this application is the owner’s property management company.
A copy of the agency agreement authorizing the landlord to act on the owner’s behalf
was entered into evidence.
WF testified that in February 2022, the owner decided that she wanted to sell the rental
unit. He testified that in order to facilitate the sale, her realtor (SW) needed to take
photographs of the rental unit to post as part of the listing. He attempted to arrange for
himself and SW to gain access to the rental unit to take these photographs. He testified
that tenant delayed this visit three times, stating that she needed time to clean up.
On March 21, 2022, WF and SW attended the rental unit for the purpose of taking
photographs for the listing. They discovered that the rental unit was overflowing with
garbage, food waste, and miscellaneous items. They submitted photographs of the
condition of the rental unit (taken from the entryway) into evidence. They show garbage
piled up in the kitchen to the height of the countertops, garbage piled atop the stove, fly
strips covered in flies hanging from the ceiling, mold on the walls, cabinet doors and
mirrors, dirty food containers on the floor and dining room table, dirty laundry piled in the
entryway, and miscellaneous refuse throughout the living space.
WF and SW testified that they had difficulty opening the door to the rental unit due to
the amount of garbage in the entryway. They testified that when they opened the door
they cleared a small part of the entryway floor. WF testified that there were “a couple
dozen flies” buzzing around. SW testified that the smell was “horrific,” and the entire
rental unit smelled “moldy, horrible, and damp”. FW testified that he does not have a
good sense of smell and could not confirm this.
On March 23, 2022, WF wrote to the tenant demanding that she clean the rental unit by
April 6, 2022.
WF also obtained a quote from a biological hazard remediation company for cleaning
the rental unit. They estimated that it would cost between $6,000 and $9,000 to
remediate the rental unit. The landlord submitted a copy of the email containing the
quote into evidence.
WF and SW returned to the rental unit on April 13, 2022 and found the rental unit to be
in a similar condition. The landlord submitted photographs confirming this.
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WF then served the tenant with a one month notice to end tenancy for cause on April
22, 2022 by registered mail. The tenant did not dispute this notice. In a subsequent
conversation with the tenant, WF advised her of this notice. He testified that the tenant
told him that she never received it. WF speculated that the tenant may have lost the
package (or the registered mail slip) in the debris in the rental unit. In any event, the
tenant did not move out on the effective date of the notice (May 31, 2022).
WF testified that he visited the rental unit on June 2, 2022, to see if the tenant had
vacated. She had not. He testified that he knocked on the door, and the tenant
answered, standing in the doorway. He could see five or six bags of garbage in the
living room of the rental unit from where he stood, but that the tenant would not let him
in. He testified that the rental unit still appeared dirty and that there was a significant
amount of mold on the near in the entryway. The landlord submitted a single photo
showing the condition of the rental unit as it could be seen from the entryway.
The entryway and the portion of the living room visible appear cleaner than they did on
the previous two visits, however, there remains a significant amount of debris. I note
that the floor of the rental unit is visible in this photograph whereas it was not in previous
photographs. Due to his poor sense of smell, WF was unable to comment on the odor of
the rental unit. WF did not see the kitchen or bedroom, so he was unable to say what
the condition of those rooms was.
The tenant has paid rent for June and July 2022 which the landlord has accepted for
use and occupancy only. The landlord submitted copies of invoices showing it accepted
rent for this purpose into evidence.
Analysis
Section 56 of the Act sets out the criteria that must be met for a landlord’s early end to
tenancy application:
Application for order ending tenancy early
56(2) The director may make an order specifying an earlier date on which a
tenancy ends and the effective date of the order of possession only if satisfied, in
the case of a landlord's application,
(a) the tenant or a person permitted on the residential property by the
tenant has done any of the following:
(i) significantly interfered with or unreasonably disturbed another
occupant or the landlord of the residential property;
(ii) seriously jeopardized the health or safety or a lawful right or
interest of the landlord or another occupant;
(iii) put the landlord's property at significant risk;
(iv) engaged in illegal activity that
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(A) has caused or is likely to cause damage to the landlord's
property,
(B) has adversely affected or is likely to adversely affect the
quiet enjoyment, security, safety or physical well-being of
another occupant of the residential property, or
(C) has jeopardized or is likely to jeopardize a lawful right or
interest of another occupant or the landlord;
(v) caused extraordinary damage to the residential property, and
(b) it would be unreasonable, or unfair to the landlord or other occupants
of the residential property, to wait for a notice to end the tenancy
under section 47 [landlord's notice: cause] to take effect.
Rule of Procedure 6.6 states:
6.6 The standard of proof and onus of proof
The standard of proof in a dispute resolution hearing is on a balance of
probabilities, which means that it is more likely than not that the facts occurred as
claimed.
The onus to prove their case is on the person making the claim. In most
circumstances this is the person making the application.
As such, the landlord must prove it is more likely than not that the tenant’s conduct
meets the criteria set out at section 56(2) of the Act.
I accept the undisputed testimony of WF and SW. Based on their testimony, supported
by the photographs admitted into evidence, I find that the tenant kept significant
amounts of garbage, refuse, food waste, and other debris in the rental unit. I find that
the condition the tenant kept the rental unit caused it to fail to meet reasonable health,
cleanliness, and sanitary standards. I accept that, at the time SW visited the rental unit,
the odor emanating from the rental unit was extremely unpleasant, and that there was a
large number of flies in the rental unit.
I find that the amount of refuse kept in the rental unit poses a significant fire risk to the
residential property, in particular due to the fact that refuse was piled the top of stove.
Additionally, I find that the condition the tenant kept the rental unit caused, or is likely to
cause, damage the landlord’s property (specifically, the rental unit itself).
I accept that as of June 2, 2022, the rental unit may have been cleaner than it
previously was. However, the portions of the rental unit visible in the photograph
provided depict living area which is still considerably unclean. Furthermore, I have no
evidence before me as to the condition of the kitchen, or other parts of the rental unit
which are not visible from the front entrance. I accept WF’s testimony that he was
unable to enter the rental unit due to the tenant impeding his access. I will not speculate
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as to the condition of the parts of the rental unit which are not visible in the photograph.
The tenant, having been duly served with notice of this application, could have attended
the hearing to provide evidence on this point.
In light of the condition of the rental unit previously, and in light of the fact that the tenant
barred access to the rental unit, I find it is more likely than not that the remainder of the
rental unit is in a condition similar, if not worse, the portion visible in the June 2, 2022
photograph.
As such, I find that even in this slightly ameliorated state, the debris in the rental unit
continues to pose a fire hazard and is likely to cause damage to the landlord's property.
As such, I find that the landlord has satisfied the requirements set out at section
56(2)(a) of the Act.
Due to the severity of the condition of the rental unit, the fact that the landlord has
previously served a one month notice to end tenancy, and that the tenant has failed to
vacate the rental unit by the effective date, I find it is unreasonable to make the landlord
wait to end the tenancy pursuant to a one month notice to end tenancy for cause. As
such, I find that they requirements set out at section 56(2)(b) of the Act has been met.
At the hearing, WF stated that the landlord was seeking in order of possession effective
July 31, 2022, given that the tenant had paid rent for the month of July (albeit for use in
occupancy only), and in order to give the tenant sufficient time to remove her
possessions and clean the rental unit prior to vacating.
Accordingly, I grant the landlord and order of possession affective July 31, 2022 at 1:00
PM.
Pursuant to section 72(1) of the Act, as the landlord has been successful in the
application, it may recover the filing fee from the tenant.
Pursuant to section 72(2) of the Act, the landlord may retain $100 of the security deposit
in satisfaction of this amount. the landlord must handle the balance of the deposit in
accordance with the Act.
Conclusion
The landlord is successful in this application.
Pursuant to section 55 of the Act, I order that the tenant deliver vacant possession of
the rental unit to the landlord by July 31, 2022 at 1:00 pm.
