The Court of Appeal in Phillips and Garraway [2026] EWCA Civ 55 had to decide whether a tenancy agreement which required the tenant to provide services as rent to which no express monetary value was attributed, was a tenancy under which no rent is payable under the Housing Act 1988 (‘the 1988 Act’).

Background

The parties had entered into a six-month rolling tenancy agreement. Rent was agreed to be two days’ work per week. The Claimants served two notices after six months. The Defendant did not vacate the property. Notwithstanding, the two notices, the Claimant’s solicitors then served a notice of quit.

The Claimant issued proceedings, claiming they had entered into a common law tenancy with the Defendant who had failed to vacate the property after service of a notice to quit.

At first instance, the District Judge made an order for possession. The Defendant appealed this decision, which was dismissed. The Defendant then appealed to the Court of Appeal.

Law

The key question was whether this was a tenancy ‘under which for the time being no rent was payable’ under paragraph 3, Schedule 1 to the Housing Act 1988. If the tenancy was classified as such then it would not be an assured tenancy and would not be afforded the protections under the 1988 Act.

Lord Justice Males reviewed the definition of rent under the historic Rent Acts. He concluded that the provision of goods or services had not qualified as rent unless a monetary value had been attributed by the parties.

The question on appeal was whether the same approach in defining rent also applied to the 1988 Act. This was answered in the affirmative for the following reasons:

1. One of the express purposes of the act was to amend the Rent Act 1977. The Housing Act 1988 adopted no definition of rent despite the ability afforded to parliament.
2. The court’s rationale for holding that ‘rent’ referred to payment of money or agreed value of goods and services was that otherwise provisions of the Rent Act would be unworkable.
3. Parliament had inserted section 3A into the Protection from Eviction Act 1977 at the same time as enacting the 1988 Act. This section excluded protection of tenancies ‘granted otherwise than for money or moneys worth’. Parliament had clearly chosen not to implement the same definition for assured tenancies under the 1988 Act.

Decision

The appeal was dismissed. Whilst it may be possible for the court to attribute a value to the services provided by the Defendant to the Claimant’s, this was irrelevant as the parties had not assigned a value to the services. The tenancy therefore did not fall within the scope of the 1988 Act, and the Claimants were entitled to possession after the expiry of the served notice to quit.