Phillips & Anor v Garraway (2026) EWCA Civ 55

This is a curious second appeal of a possession order. It was the tenant’s appeal, as the first appeal had upheld the possession order.

The background is that Mr & Mrs Phillips had granted Ms Garraway a tenancy of The Lodge, Southwood, Scabharbour Road in Hildenborough, near Tonbridge in Kent. I gather that this is a dwelling on Mr & Mrs Phillips larger estate. The tenancy was for a six month term and under ‘rent’, the agreement said:

‘Minimum of 2 days work on the estate with hours from 9:00 to 17:00. Breaks to be agreed.’

Ms G was also to re-imburse the landlord for water, electricity, council tax and heating oil. Ms G apparently did two days, or four half days, work on the estate pruning and weeding neglected land.

After 6 months, the landlords told Ms G that they required vacant possession, and, when she didn’t leave, they served notice to quit a couple of months later. Ms G stayed, taking the view that the NTQ was invalid. A possession claim followed, and a possession order was made on the basis that the tenancy was not an assured tenancy as it was a tenancy for which ‘no rent was payable’ under the terms of Housing Act 1988, and so the NTQ was valid.

This was upheld on appeal.

The question for the Court of Appeal on second appeal was thus whether “a tenancy which requires the tenant to provide services to which no monetary value is expressly attributed is a tenancy under which no rent is payable within the meaning of the Housing Act 1988”.

The Court of Appeal dismissed the appeal.

The position in common law was that services could amount to rent. As Woodfall puts it

At common law rent must always be a profit. Although a rent is usually money there is no need for it to be. Rent may be in delivery of hens, capons, roses, spurs, bows, shafts, horses, hawks, pepper, cumin, wheat or other profit, or in attendance. Rent may also take the form of services. Thus the rent may consist of cleaning a church or a synagogue; performing team work with horse and cart; shearing sheep; carrying coals, or taking corn to be ground in the landlord’s mill.’

The position was the same in Law of Property Act 1925

‘a rent service or a rentcharge, or other rent, toll, duty, royalty, or annual or periodical payment in money or money’s worth, reserved or issuing out of or charged upon land’

Thus a payment may be in money’s worth even if there was not an express value for the goods or services given.

However, when it came to statutory definitions of rent in the various Rent Acts, up to Rent Act 1977, the position was different.

Hornsby v Maynard (1925) 1 KB 514 held that ‘rent’ under Increase of Rent and Mortgage Interest (Restrictions) Act 1920 was restricted to ‘pecuniary rent’ (ie money).

This was doubted in Montagu v Browning (1954) 1 WLR 1039, which suggested that services could be rent if there was a specified or agreed value to the services. But in Barnes v Barratt (1970) 2 QB 657, the Court of Appeal affirmed Hornsby v Maynard, at least partly on the basis that Parliament had not seen fit to change the definition of rent in the subsequent Rent Acts, despite this earlier and established decision, nor, in that case, was there any specified or agreed quantification of the value of the services.

The Housing Act 1988 had effectively imported the same definition of rent from the Rent Act 1977 for assured tenancies. It was therefore clear that Parliament had not intended a different definition. This was particularly clear because Housing Act 1988 amended Protection from Eviction Act 1977 with a different definition for a tenancy that ‘is granted otherwise than for money or money’s worth’, which would include services, but only for tenancies that were not excluded from the PFEA, which Housing Act 1988 assured and assured shorthold tenancies were.

Nor would a definition of rent that included services make broader sense within Housing Act 1988

For example, and without seeking to be exhaustive, it would make no sense for a tribunal to attempt to determine the rent at which a dwelling-house might reasonably be expected to be let in the open market otherwise than in money terms, or to consider whether a rent denominated in the provision of services was significantly higher than the rent payable for other similar dwelling-houses in the locality. Similarly, a claim for repayment of services rendered in advance where a tenancy is brought to an end before the end of the relevant period would make no sense either. More generally, numerous provisions of the 1988 Act refer to rent being ‘paid’ or ‘payable’, or to ‘the amount of the rent’, while the provisions which limit the scope of the Act to tenancies where the rent is between £250 and £100,000 strongly suggest that rent must be quantified in monetary terms.

It may be that provision of services of a specified or agreed value may amount to rent, as there would be a pecuniary value given, but there was no such value ascribed or agreed to Ms G’s services.

The payments to the landlord for Council Tax, oil, water etc. were not rent, as Schedule 1 para 2(2) of Housing Act 1988 provided that ‘rent’

‘does not include any sum payable by the tenant as is expressed (in whatever terms) to be payable in respect of rates, council tax, services, management, repairs, maintenance or insurance, unless it could not have been regarded by the parties to the tenancy as a sum so payable.’

The tenancy was not an assured tenancy, was excluded from Housing Act 1988 and the possession order stood.

Comment

Housing Act 1988 Schedule 1 Part 1, para 3 does exclude ‘a tenancy ‘under which for the time being no rent is payable’ from being an assured tenancy. If we accept the historic meaning of ‘rent’ under the Rent Acts, then this seems to be right (at least where no express value is given for and agreed for the services).

In the current context, it sadly has to be said to any private landlords who might think this is a splendid way to get out of the Renters’ Right Act 2025 and head off to re-invent feudalism, that it is probably not a good idea to try this, even if they can find tenants with the time, energy or willingness to to provide services instead of rent.

The first reason is hinted at in the Judgment.

At one time the local council appears to have been concerned that this agreement might represent a form of modern slavery, but no such concern was raised in the courts below or before us and I need say nothing further about it.

The second is that HMRC may well be interested in what is effectively an employment relationship, and considerably less satisfied with ‘oh we didn’t put a figure on it’ than the Housing Act 1988…