COMMENTED DECISION

#842864

January 15th, 2016

Introduction

(Blue Itallics are my comments, Black regular text, is that of the RTB)

The application for Dispute Resolution filed by the landlord seeks an Order for Possession for non-payment of rent.

A hearing was conducted by conference call in the presence of both parties.  On the basis of the solemnly affirmed evidence presented at that hearing, a decision has been reached.  All of the evidence was carefully considered.

Both parties were given a full opportunity to present evidence and make submissions.  Neither party requested an adjournment or a Summons to Testify.  Prior to concluding the hearing both parties acknowledged they had presented all of the relevant evidence that they wished to present.  The parties acknowledged they had received the documents of the other party. (The Respondent testified he was ill prepared and not well in health at the very beginning of the Telephone Conference.)

I find that the 10 Notice to End Tenancy was served on the Tenant by posting on October 31, 2015.  I find that the Application for Dispute Resolution/Notice of Hearing was served on the tenant by posting on November 20, 2015.

The respondent submitted this is not a residential tenancy matter and that I do not have jurisdiction to hear this application. (That's right, this is not a Tenancy matter.  Good decision.)

Preliminary Matter

The preliminary issue is whether the Residential Tenancy Branch has jurisdiction to hear this application?

Background and Evidence

The applicant testified as follows:

• She is the registered owner of the property.
• She is the mother of the respondent.  He is the youngest of 4 children. (Actually third, of four children, the youngest male.)
• The respondent is 46 years of age.  He has lived in the rental unit for approximately 25 years and lived in the upstairs portion of the house prior to that. (The Respondent is 40 years of age and had lived in the entire house since infancy.  The one likely helping the Applicant during the conference is 46 years of age.  Did you speak with him?  Why the confusion? We both know another person was present.)
• The rental unit was previously rented to some of her other children. (There never was a functioning rental unit, some of the other children resentfully paid room and board with no appreciation towards their parents nor the home.  They had no care other than themselves, one paid nothing out of her own capital.  In fact, the other siblings willingly blocked maintenance and added stressors to the already over stressed household.)
• There is no written agreement between the parties.  The respondent has not paid a security deposit.
• The respondent originally paid rent of $400.  It was increased to $675 and then to $1000 about 4 years ago. (This is not true, will edit with closer facts later.  The Respondent wanted to pay more but could not get his needs fullfilled nor anything in writing.  Furthermore, he only had a bedroom.)
• The respondent has not paid any rent since October 2013 with the exception of a $750 payment on February 14, 2014 when the respondent was going through bankruptcy problems. (The respondent avoided unrecoverable bankruptcy and fraud which his family members were encouraging him to commit.)
• The applicants testified the respondent often yells at her and threatens her.  She is afraid for her safety. (Raising a voice under aggitation is natural and not yelling.  If the responded was yelling the neighbours would hear his deep voice.  The Applicant is not scared, this is a tactic the Psychologist in Counselling stated would be used.  The only people the Applicant has historically truly been scared of scared of is her other children, she had no thumb on them.  However, for twenty years she's had full control of the Respondent through threats and intimidation of giving away all of his deepest concerns, his work and effort to the other children.)
• She further testified the respondent completed some renovation work in the rental unit.  However, he has caused significant damage to the rental unit as the entire backside is down to 2x4's with no ceiling or walls. (The Applicant not only was involved and approved those renovations, she was helping pay for them.  Why no mention of the completed renovations?)

The respondent testified as follows:

• The payments he made to his parents was not rent, but contributions to the household when his parents were desperate and unable to pay bills when due. (Actually the Respondent testified that the payments where Life Support and that he completed his minimum goal of keeping his parents afloat.  He likely extended his fathers life span and as one extended family member stated, saved his mother from killing herself.)
• He testified he has contributed over $100,000 in work and $50,000 in materials to the house.  The applicant denies this. (Could likely even be higher in sum, not to mention the financial losses incurred.  The Respondent has earned over a million dollars to date with his own hands, in an honest fashion.  There's nothing to show for it.)
• His parents promised him an ownership interest in the house. (Actually they hinted at the entire house, in the very least he was to "get" and he'd be looked after.)
• His siblings are manipulating the applicant. (Yes, right into the loss of the entire asset and likely the shortened lifespan of both the Applicant and the Respondent.  No ill effects to the siblings, they have no risks but they seek reward for immoral behaviour.)
• He started paying $1000 as a financial contribution to maintain the house after his father passed away. (I thought it was a year, it may  have been just over.  I also paid $1200 when he was alive and he was proudly stating I'd look after him.)
• He paid the cablevision cost for many years.  However, he cut the cable in August 2015. ($240 per month for years, didn't even watch TV.)
• The actions of the applicant and his siblings has caused him ill health including thoughts of suicide. (On more than one occasion, the greatest was the Winter of 2013/2014.  Health effects are likely permanent.  As are the Psychological effects.)

Analysis:

This is very unfortunate case.  Witht he exception of a $750 payment in 2014 the respondent has not made payments to his mother for over 2.5 years. (Well, they sure screwed up the chances of extorting more money didn't they?) Further, I accept the testimony of the applicant that the respondent has yelled at her and she feels threatened by him.  (Once again, speaking in a amplified tone under stress is not yelling.) However, after carefully considering all of the evidence I determined this is a not a residential tenancy relationship and the at the Residential Tenancy Branch does not have jurisdiction for the following reasons:

• In my view the payments made be the respondent to the applicant are better characterized as a payment to maintain the house reather than a rent payment.  (Yes.)
• The parties did not agree to the payment of rent. (Actually we agreed that it was NOT rent.)
• The parties did not enter into a written residential tenancy agreement.
• The respondent has not paid a security deposit.
• The respondent has lived in the rental property since he was an infant and has access to the entire rental property. (Thank you.)
• The payments made increased in a manner not permitted under the Residential Tenancy Act.  (Yes, I increased them, not her.)
• This is a family dispute where the respondent is claiming an ownership interest in the rental property.  (There's no dispute in my eyes, Applicant would not have house without me.  The others abandoned both the home and their parents along with all the problems.  Two of them even laughed for years, all of them made derogatory comments in regards to the home and their parents.  All displayed a complete lack of care for anyone but themselves.)

As a result I determined the Residential Tenancy Branch does not have jurisdiction and I declined to hear the matter.

This does not mean the applicant is without a remedy.  The applicant should contact a solicitor to assist her in considering her options.  Further, if the respondent is threatening the safety of the applicant the police should be called immediately.  (And what about the safety of the Respondent?  He did Testify that she almost killed him in November.  You have mentioned suicide right here in your decision. There are mentions of degraded health concerns. Where is the safety concern for the Respondent?  Is this pure political bias?  I do thank you for the decison.)

This decision is made on the authority delegated to me by the Director of the Residential Tenancy Branch under section 9.1(1) of the Residential Tenancy Act.

Dated January 15, 2016.

(The Respondent testified under Oath that the Applicant was lying.  It is the Respondents view that the elderly Applicant was guided not only into lying under Oath, but into committing Fraud intended for maximum harm to the Respondent by pre-signing and pre-dating the original document to hit two days before the Respondents 40th Birthday.  The stress incurred almost killed the Respondent over a three week period.  There are several witnesses to this.)