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Good luck getting that damage deposit back

The “time-consuming and ridiculous” system for holding landlords accountable.

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Melanie Quigg has been fighting for over a year to get her money. - SUBMITTED
  • SUBMITTED
  • Melanie Quigg has been fighting for over a year to get her money.

Melanie Quigg has been fighting to get her $650 damage deposit back for more than a year. Despite a favourable decision from a Residential Tenancies Board adjudicator last month, she’s still waiting.

“I was thrilled and relieved to know I had won,” says Quigg. “But I’ve seen enough to know just because the ruling was in my favour, it doesn’t necessarily mean I will ever see the money.”

Neither the property manager nor the homeowner appealed that decision. But Quigg must now go through Small Claims Court to enforce it. She may even have to pay a sheriff to collect her own money.

The problem starts in a gray area of the Residential Tenancies Act. Section 12.5 states if there is no damage or unpaid rent, deposits must be returned 10 days after the tenant vacates. But Section 13.1 gives landlords 
and tenants up to one year to claim disputed monies.

Service Nova Scotia communications advisor Lori Errington says the two sections are not contradictory because they apply to 
different situations, so no change is being considered.

“The one-year time frame applies if there is a dispute over unpaid rent or damage to the unit. It is meant to allow time for the necessary processes to be completed before the landlord applies to keep some or all of the deposit,” Errington writes. “We realize that, unfortunately, some landlords do not follow these rules and this can be difficult and frustrating for tenants.”

No kidding. In Quigg’s case, David Kennedy of Top Flight Property Management did not respond to repeated messages left over four months requesting the deposit be returned. He managed the house Quigg rented from Emily Edwards, who was actively trying to sell it.
When reached by The Coast earlier this year, Kennedy said Quigg would have to apply to the Tenancies Board because she had broken her lease by leaving early.

A Tenancies Board adjudicator heard Quigg’s case on May 30. Quigg had email evidence of discussions with Edwards’ realtor who wanted her out on 30 days notice if the house sold. Quigg understood she had the same flexibility. Adjudicator Jason Warham ruled Quigg was entitled to her deposit because she had not broken her lease.

“The landlord cannot, on one hand, want to go outside the requirements of the Tenancy Act and then, on the other hand, hold the tenant to the strict terms of the Act and lease,” Warham wrote in his decision. “In addition, the landlord re-rented the unit and mitigated its losses.”

The decision from Residential Tenancies entitles Quigg to get her $650 back, but she faces a more daunting task to collect it.
Here’s how the process goes:

1. The renter asks the Tenancies Board Officer to direct the Small Claims Court to turn its decision into a court order.

2. The renter applies to Small Claims Court for an Execution Order a sheriff will 
enforce.

3. The renter must register the court order ($35.75) at the Property to Land Registry office at 780 Windmill Road.

4. The renter must hire a sheriff to collect the debt ($99.70).

New Brunswick has a more efficient process where damage deposits are paid directly to a third party—the Office of the Rentalsman—and tenants apply online to retrieve it. Landlords have seven days to notify the Rentalsman if there is a dispute. If not, the Office sends out a cheque within three weeks. Hello, Nova Scotia?

Dalhousie Legal Aid community legal worker Megan Deveaux describes the collection process as “time-consuming and ridiculous.”

Deveaux says the sheriff will fail to collect unless the tenant knows where the landlord or property manager lives or the location of the bank branch where the damage deposit is supposed to be held in trust. (Service Nova Scotia doesn’t do random audits, so the money may or may not be there. If so, the sheriff can access it.)

The sheriff can also demand that the new tenant at Quigg’s old address hand over next month’s rent to cover Quigg’s loss.

“That’s bad for business,” says Deveaux, “plus it’s dumb on the part of property owners not to refund the deposit before it costs them a lot more once the sheriff arrives and they have to cover the fees the tenant paid upfront.”

In the case of Quigg’s former landlord, those costs would total $983.77 once the sheriff’s commission, property registry and other fees are included.

The Tenancies Board adjudicator asked property manager David Kennedy to provide the trust account address. Armed with that information, Deveaux predicts Quigg should be able to get back her $650—eventually.

“Things don’t change unless everybody pushes back,” says Quigg. “I also know everyone isn’t able to. I was lucky to have a retired father who made several attempts to serve the papers on the property manager. The whole system seems set up to discourage anyone from following through. There are just too many roadblocks.”

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