Q.B. A.D. 1998 No. 2272 J.C.R. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GERTRUDE RUSSELL and ROBERT HARVEY MacFARLANE and VIVIAN JUNE MacFARLANE RESPONDENTS J.P. Malone for the applicant G.J. Tkach for the respondents JUDGMENT HUNTER J. August 27, 1998 [1] The landlord, Gertrude Russell ("Russell"), appliesfor an order for a writ of possession pursuant to s. 50 of TheLandlord and Tenant Act, R.S.S. 1978, c. L-6, as am. S.S. 1979-80, c 92. [2] The respondents, Robert Harvey MacFarlane and Vivian June MacFarlane ("MacFarlanes"), entered into lease dated October 13, 1995, with Russell and her now deceased husband (date of death, September 13, 1997) with respect to land legally described as Section 30, Township 16, Range 6, West of the Second Meridian ("the land") together with the buildings on the land including house, barn and granaries and, in addition, equipment described in Schedule "A" to the lease (including tractors, swathers, balers, etc.). The lease was for term of 41 months up to and including April 30, 1999. [3] The MacFarlanes covenanted to pay monthly rental of $500.00 per month for the first five months of the lease and thereafter the rental payments were to be made by equal semi- annual payments of $5,000.00, the first payment to be made on May 1, 1996, and thereafter the rental payment to be made on the first day of each six month period during the term of the lease. The MacFarlane\'s have not paid any rent in 1998. Five thousand dollars should have been paid May 1, 1998. [4] Russell alleges she is entitled to writ of possession on the following grounds: (a) The MacFarlanes are in arrears of rent by more than two months. (b) The MacFarlanes are in breach of their covenantto obtain and maintain suitable insurance uponthe leased premises. (c) The MacFarlanes are in breach of their covenantnot to make any alterations or additions to thedemised premises because they have installedalternating stalls in the barn. (d) The MacFarlanes are in breach of their expressedand implied covenants to keep the demisedpremises in good condition and tenantable repairand to use and occupy the demised premises in agood husband like manner by virtue of theirfailure to:-- remove and properly dispose of baler twine;-- maintain proper weed control;-- remove manure buildup in the calf barn. [5] The MacFarlanes filed affidavit evidence in response to the allegations made by Russell and there are factual disputes with respect to the alleged breaches of the covenants in the lease. Where there are involved questions of fact orlaw, the matter should not be decided summarily but should bedecided in an action (Vogelgesang and Kennedy v. WilliamsHoldings Ltd. (1981), 1981 CanLII 2300 (SK QB), 15 Sask. R. 336 (Sask. Q.B.)). Accordingly, only two issues need to be addressed, namely, the non-payment of rent and the alleged failure to maintain proper weed control. [6] The MacFarlanes admit the payment due May 1, 1998, wasnot made because, they allege, Russell has breached the lease(clause 5.2) and because there was a pre-condition to thelease wherein Russell\'s husband promised to repair the damageto the premises from a hail storm which occurred in August,1995, and the damage has never been repaired. [7] Under the landlord's covenants in the lease, clause 5.2 To keep the building insured against loss or damage by fire and other insurance cause and to build and reinstate them whenever damaged by fire or other insured cause. If as result of fire other than damage for which the Tenant is responsible, the Leased Premises is unfit for carrying on the Tenant's business the rent shall abate until the Leased Premises are again fit for the Tenant's business. If part only of the Leased Premises are unfit for the Tenant's business the rent abates pro rata until the whole of the Leased Premises are fit for the Tenant's business. [8] With respect to the hail damage which occurred in August, 1995, and prior to the execution of the lease, this matter was addressed in the lease in paragraph 3.1 as follows: 3.1 The Parties agree that the Tenant shall be solely responsible to repair and maintain the land, buildings and equipment except for the hail damage to the house siding and shingles on the barn addition which shall be replaced by the Lessor. [9] The MacFarlane's now allege that the Russells did not repair the hail damage to the house, barn, milk house/calf barn, and shed at the back of the barn. The claims for repair now being made by the MacFarlanes are far in excess of those provided for in clause 3.1 of the lease. [10] In The Landlord and Tenant Act, s. 27, tenant is entitled to set off against rent due debt owed to the tenant by the landlord. The tenant is required to give notice of the claim of set off to the landlord. The issues with respect tothe hail damage may allow the MacFarlanes to claim in damagesagainst Russell but it cannot be construed as a debt due forthe purposes of s. 27 of The Landlord and Tenant Act. [11] Accordingly, the MacFarlanes are in breach of thecovenant to pay rent and the rent is outstanding for more thantwo calendar months. For this reason Russell is entitled to awrit of possession directed to the sheriff to put Russell inpossession of Section 30, Township 16, Range 6, West of theSecond Meridian, Saskatchewan. [12] The remaining allegations made by Russell with respectto the other alleged breaches of the covenants by theMacFarlanes may not be determined summarily. The MacFarlanes have failed to respond to the allegation that one quarter section of land has not been seeded and therefore is entirely covered with wild millet (a weed). However, based on the evidence before me in this application, am not prepared to draw the inference that that is failure on the part of the MacFarlanes to use and occupy the premises in good husband like manner. With respect to all of the other allegations raised, it would be necessary to have trial of the issue to determine whether or not Russell is entitled to writ of possession for any of those other reasons. [13] Accordingly, a trial of the issue is directed todetermine whether the respondents are in breach of thecovenants of their lease as alleged with respect to thegrounds stated by Russell in paragraphs (b), (c) and (d),supra. Russell shall be the plaintiff and the MacFarlanes the defendants in any such action and the Rules of Court generally will govern the conduct of that action. [14] writ of possession in accordance with Form "C" of The Landlord and Tenant Act may issue with costs of this application to Russell in any event of the cause.
Landlord and Tenant - Writ of Possession_____ The landlord applied for an order for a writ of possession pursuant to s50 of the Landlord and Tenant Act. The 41 month lease required a monthly rental of $500 for the first five months and thereafter semi-annual payments of $5,000. The tenants had not paid any rent in 1998 nor had they maintained insurance; they installed alternating stalls in the barn in breach of their covenant not to make any alterations or additions to the premises; breached the express and implied covenants to keep the premises in good condition and tenantable repair by their failure to remove and properly dispose of baler twine, to maintain proper weed control or to remove manure buildup in the calf barn. The tenants admitted the rental payment was due in May but claimed the landlord breached the pre-condition wherein Russell's husband promised to repair the damage caused by a 1995 hail storm. The claims for repair was far in excess of those provided for in the lease which were the tenant's responsibility._____ HELD: 1)The landlord was entitled to a writ of possession since the tenants were in breach of the covenant to pay rent for more than two calendar months. 2)A trial of the issue was ordered to determine whether the tenants were in breach of covenants in the lease. The matter should not be decided summarily where there are questions of fact or law. The hail damage may allow the tenants to claim in damages against the landlord but it could not be construed as a debt due for the purposes of s27 of the Landlord and Tenant Act. The remaining alleged breaches could not be determined summarily.  3)Costs of the application were awarded to the landlord in any event of the cause.