Rent Act 1977, section 7(1) — Tenancy not a protected tenancy if under the tenancy the dwelling-house is bona fide let at a rent which includes payments in respect of board — Meaning of ‘board’ — Dicta of majority in Wilkes v Goodwin approved after 64 years — In the present case a room was let to the tenant in consideration of a rent of £50 a week which included a ‘continental breakfast’, in fact the provision of two bread rolls, jam, marmalade and butter, tea or coffee with milk and sugar, and also a glass of milk which the tenant took up to drink in his room — No other meals were provided — In a possession action the landlord claimed that by reason of the provision of board the tenancy was not protected — The tenant submitted that what was provided did not constitute board within the meaning of section 7(1) — The assistant recorder in the county court rejected the tenant’s
The following
cases are referred to in this report.
Gavin v Lindsay 1975 (unreported) (Sh Ct)
Holiday
Flat Co v Kuczera 1978 SLT (Sh Ct) 47
R v Battersea, Wandsworth, Mitcham and Wimbledon Rent Tribunal, ex
parte Parikh [1957] 1 WLR 410; [1957] 1 All ER 352, DC
Wilkes
v Goodwin [1923] 2 KB 86
This was an
appeal by the tenant, Gerard Norman, from a decision of Mr Assistant Recorder
Burnett QC at West London County Court in favour of the landlord, Charles
Alfred Otter, granting the latter possession of a room at 27 Egerton House,
Egerton Terrace, London SW3, occupied by the tenant.
Robert Pryor
QC and Mark Dencer (instructed by Oliver O Fisher & Co) appeared on behalf
of the appellant tenant; Paul de la Piquerie (instructed by Warners, of
Tonbridge, Kent) represented the respondent landlord.
Giving
judgment, MAY LJ said: This is a tenant’s appeal from orders made by Mr
Assistant Recorder Burnett QC in the West London County Court on February 20
1987. At the outset I should say that the substantive litigation which he then
decided and which is the subject of the present appeal was the second of two
county court actions in which these parties, landlord and tenant respectively,
had been involved.
The action
started in 1986 with the number 8615634. The learned assistant recorder, after
the hearing, ordered that the defendant tenant should give possession of a room
at 27 Egerton House, Egerton Terrace, London SW3, and made various other
consequential orders. It is against that judgment for possession in particular
that the tenant now appeals.
The case
involves a short point of construction on which there are conflicting obiter
dicta of members of this court in 1923 but which does not appear to have
arisen again in this court until today — a period of some 64 years.
The matter
arises in relation to section 7(1) of the Rent Act 1977. That provides as
follows:
A tenancy is
not a protected tenancy if under the tenancy the dwelling-house is bona fide
let at a rent which includes payments in respect of board or attendance.
It may be noted
at the outset that the relevant words are ‘at a rent which includes payments in
respect of board or attendance’. There is no need for the tenancy to require
the provision of board.
The facts of
this case can be briefly stated. Egerton House is a substantial building. By an
oral agreement made on October 14 1983 the plaintiff landlord, the respondent
before us, rented to the appellant tenant the premises, Room 27 Egerton House,
in consideration of a rent of £50 per week, which included the provision by the
landlord to the tenant each morning of a breakfast which comprised two bread
rolls, jam, marmalade and butter, unlimited tea or coffee, milk and sugar for
that tea or coffee and milk for cornflakes provided by the tenant, and finally
a glass of milk which the defendant took up to drink in his room. That was
provided by the respondent landlord between 8.15 am and 10 am in the dining
room in the basement of Egerton House and was consumed daily by the appellant.
No other meals were provided for the tenant by the landlord. The questions
which arise on those simple facts are whether the appellant’s tenancy was or
was not within the provisions of section 7(1) of the Rent Act 1977 and thus
whether there was a protected tenancy.
The
appellant’s submission here and below has been that ‘board’ in the context of
the statute is not just the provision of food. It includes that but it also
includes the food’s preparation and after the meal its clearing away. Further,
the context in which the word is used in the statute is that of a letting to a
tenant of his home, where he lives, eats and sleeps, and thus it is argued that
‘board’ involves the preparation, provision and clearing away of at least a
morning and an evening meal. That is the minimum. It can, of course, be
breakfast with two other main meals, but breakfast and one main meal is the
minimum to constitute ‘board’ as that word is used in the subsection. Here
there was only provision for breakfast; consequently, it is contended, the
tenancy was not within section 7(1) of the Act and was therefore protected.
In reply the
landlord’s contention here and below is that the word ‘board’ is to be
construed in a sense in which it is used, for instance, in the phrase ‘board
and lodging’. It is the food component of the provision of accommodation where
food is part of that which is provided. It does not, it is suggested,
necessarily refer to any particular meal or meals. In the instant case, the
argument continues, ‘board’ in the shape of breakfast was provided; therefore
the tenancy was one within the provisions of section 7(1) and consequently the
assistant recorder was correct as the tenancy was not protected.
In so far as
there is authority on this short point of construction, we were referred first
to the decision in Wilkes v Goodwin [1923] 2 KB 86. That was a
case concerned with the provisions of section 12(2) proviso (i) of the Rent Act
1920, which were to this effect:
This Act
shall not, save as otherwise expressly provided, apply to a dwelling-house bona
fide let at a rent which includes payments in respect of board, attendance, or
use of furniture.
One need not
go into the facts in any more detail than to say that the issue in Wilkes v
Goodwin was whether the provision of certain linoleum was sufficient to
bring the tenancy within the terms of that statutory provision. However, in the
course of discussing the proper construction of the statute, all three lords
justices dealt with the question of the provision of board, among the other
items such as attendance and furniture. However, as I have already
foreshadowed, Bankes and Scrutton LJJ took one view, Younger LJ took another
view, and it is necessary accordingly to refer in some detail to passages from
their respective judgments. Bankes LJ at p 93, said this:
The proviso
in question is introduced into the section which defines the dwelling-houses to
which the Act shall apply for the purpose of excluding a certain class of
dwelling-house from the operation of the Act. It does so by the application of
two tests. The one is the bona fides of the letting and the other is that the
rent includes payments in respect of board, attendance, or use of furniture.
The first test depends upon a question of intention, the second is a question
of fact and of degree. In some cases the tests may run the one into the other,
in others they may stand independently of each other. I will take the second
test first. Three quite common and well understood words are used, board,
attendance, furniture. The words are used quite generally and without any
limitation. The statute does not indicate whether full or partial board,
complete or intermittent attendance, much or little furniture is aimed at. It
uses the words quite generally, and in my opinion any amount of board, any
amount of attendance, any amount of furniture, will satisfy this second test,
which is not ruled out of consideration by the application of the rule de
minimis non curat lex.
Turning to the
judgment of Scrutton LJ at p 96 of the report, having referred to two
authorities on another aspect of the construction of the relevant provision,
the learned lord justice continued:
On the rest
of the proviso, in my view ‘board’ is not confined to the full board of an
ordinary tenant, ‘attendance’ to full attendance, or ‘furniture’ to the
complete furniture of a ‘furnished house’. Partial board, partial attendance,
or some furniture though the house is not completely furnished, will suffice to
bring the proviso into operation. Parliament might have made the other
provision, but have not in my opinion done so. If they did intend the other
meaning, they apparently have an opportunity this year to make their meaning
plain. If some furniture will do, how much will suffice? This seems to me to require an answer to
these questions. (1) Is part of the subject of the letting what can properly be
called ‘furniture’? (2) Did the parties
agree in the rent to include payment for the use of that ‘furniture?’ (3) Is there a bona fide contract to that
effect, or is such a term only a pretended agreement inserted to take the case
out of the Act, without involving any real transaction of tenancy or hire of
furniture?
As will be
seen, the views of those two lords justices were the same, albeit obiter and
in effect may be relied on in support of the landlords’ contention in the
present case.
However, one
then turns to the judgment of Younger LJ at p 109 to the contrary sense:
Salter J in
the present case has expressed the opinion that the provision by the landlord
of a minimum of furniture might be sufficient to bring a tenancy within the
other exception ‘use of furniture’. I cannot refrain from saying that if either
of these views be correct the result is, in my judgment, to make something very
like nonsense of this exception. It seems to me impossible to believe that the
Legislature could have intended by it that a tenant should lose all the benefit
of the statute, because in the one case he had not to carry up his own coals,
and the substantial benefit of the Act, because in the other he had the use of
a few of his landlord’s chairs. . . . Accordingly I ask myself, is the Court imperatively
required by the force of the language used to place such a construction upon
this exception. In my judgment nothing less constraining will justify it in
doing so, and, as I see it, we have no such burden laid upon us. I quite agree
that as a mere matter of language such a service as carrying up coals is
‘attendance’, partial though it be. I agree also that in the same way the use
of a few chairs is the use of furniture, insignificant though they be. As a
mere matter of words each of these expressions may quite properly be taken to
mean very little, although with at least equal propriety they may be taken to
connote a great deal more. But in my judgment so much may not be said of the
third word ‘board’ with which these two other expressions are associated. The
word chosen is, it will be noticed, not ‘food’ or ‘drink’ but ‘board’. ‘Food’
may of course mean much or little; ‘drink’ I hope is entitled to an equally
non-committal construction. ‘Board’, however, is a different word altogether.
It is defined, I see, in the Oxford Dictionary as ‘daily meals provided
in a lodging or boarding house according to stipulation; the supply of daily
provisions’. The word without suffix or affix suggests to my mind sufficiency.
It could never, I think, be satisfied by the provision, say, of an early
morning cup of tea. If you wish to accentuate its abundance you may call it
‘full board’, but if you would convey that it is limited then you must call it
‘partial’ or qualify it by the use of some other adjective of limitation. It
appears to me that the natural interpretation of the word as we find it in this
exception involves the conception of a provision by the landlord of such food
as in the case of any particular tenancy would ordinarily be consumed at daily
meals and would be obtained and prepared by a tenant for himself, if it were
not provided by somebody else.
That passage
from Younger LJ’s judgment is in its turn strongly relied on in support of the
appellant’s case in the present appeal.
Another
authority to which our attention was drawn was R v Battersea,
Wandsworth, Mitcham and Wimbledon Rent Tribunal, ex parte Parikh [1957] 1
WLR 410. That was a case under the provisions of the Furnished Houses (Rent
Control) Act 1946 and in particular section 2(1). But in the course of his
judgment in the Divisional Court Lord Goddard CJ referred briefly, but again
obiter, to section 12(3) of the Act with this comment:
By section
12(3): ‘Nothing in this Act shall apply to a house or part of a house let at a
rent which includes payment in respect of board: Provided that a house or part
of a house shall not be deemed to be let at such a rent unless the value of
such board to the lessee forms a substantial proportion of the whole rent’.
That would allow the Act to apply if a person was taken in for the purpose of
boarding, but, although the rent was £3 or £4, the board provided was merely a
sandwich or the furniture was trivial in character or amount.
I entirely
agree with Mr Pryor, on behalf of the appellant before us, that that does not
take one very far in the instant case. Nevertheless it does seem that Lord
Goddard was prepared to consider that a sandwich could be board, albeit trivial
in character or amount.
We were also
referred to the dictionary definition, which I need not quote because it was
mentioned by Younger LJ in the passage from his judgment to which I have
referred.
In addition
our attention was drawn to two Scottish decisions, Holiday Flat Co v Kuczera
1978 SLT (Sh Ct) 47 and Gavin v Lindsay 1975 (unreported) (Sh
Ct), where under the similar Scottish statute both Sheriff Macvicar in the
first and Sheriff Kearney in the second seem to have followed the line
suggested by Bankes and Scrutton LJJ in Wilkes v Goodwin rather
than that taken by Younger LJ. That I think can be particularly said about the
judgment of Sheriff Macvicar in the Holiday Flat Co case.
We were also
taken through the legislative history of the Rent Acts in so far as is
material. Our attention was drawn, first, to the 1915 Act where section 2(2)
provided: ‘This Act shall not apply to a dwelling-house let at a rent which
includes payment in respect of board, attendance or use of furniture’. That was
superseded by section 12(2) of the 1920 Act, which introduced the element of
bona fides and provided: ‘This Act shall not . . . apply to a dwelling-house
bona fide let at a rent which includes payment in respect of board, attendance
or use of furniture’. Then we were taken to the Rent and Mortgage Interest
Restrictions Act 1923, which introduced a qualification on the extent to which
payments for attendance or the use of furniture could be material. The rent
attributable to that had to form a substantial portion of the whole rent in
order that the relevant dwelling-house should not come within the statutory protection.
We then moved on through a number of intervening statutes to the Furnished
Houses (Rent Control) Act 1946 in which the relevant section is section 12(3),
which I have already quoted from the judgment of Lord Goddard in the Parikh case.
After the 1946 Act there were similar re-enacting statutes in 1968 and 1974,
coming up to date with the provisions of the 1977 Act and section 7(1) which
are at the root of this appeal.
Against that
legislative history it was submitted on behalf of the appellant that after the
1920 Act Parliament did not introduce any consideration of amount into the
‘board’ element in the 1923 Act and subsequent statutes, despite the invitation
by Scrutton LJ in his judgment in Wilkes v Goodwin, until
furnished houses came within a form of control in 1946, because the word
‘board’ involved a minimum by definition — that is to say, breakfast and one
meal at least.
For my part,
however, that submission is very substantially undermined by the terms of
section 12(3) of the 1946 Act and the subsequent statutory provisions. For
instance, section 19(5)(c) of the 1977 Act provides, albeit in relation to
restricted contracts:
A contract is
not a restricted contract if — . . . (c) it is a contract for the letting of
any premises at a rent which includes payment in respect of board if the value
of the board to the lessee forms a substantial proportion of the whole rent.
That, then, is
the issue which has to be decided in this appeal. There is little if any direct
authority to assist us. It is, as so often is the case in questions of
construction, largely a matter of first impression. For my part I respectfully
prefer the approach of the majority of this court in Wilkes v Goodwin
and I adopt in particular the three questions posed by Scrutton LJ in the
course of his judgment, appropriately amended for the purposes of the instant
appeal. Is part of the subject of the letting what can properly be called
‘board’? Did the parties agree in the
rent to include payment for the provision of that board? Is there a bona fide contract to that effect,
or is such a term only a tentative agreement inserted to take the case out of
the Act without involving any real transaction of tenancy or provision of
board?
On the facts
of this case I have no doubt that each of those questions has to be answered in
the affirmative. Consequently in my view, for the reasons which I have
outlined, the learned assistant recorder came to the correct conclusion and I
would therefore dismiss this appeal.
WATERHOUSE J
agreed and did not add anything.
The appeal
was dismissed with costs, to be paid by the Legal Aid Fund. Application for
leave to appeal to the House of Lords was refused.
