Rent Act 1974–Occupant of bed-sitting room held a licensee and not a tenant–Observations on the distinction between a tenancy and a licence–Further point on the nature of the ‘attendance’ which excludes a tenancy from control
This was an appeal
by George Albert Charters, occupier of a small top-floor room of a house in
Clapton Common, against an order of Judge Willis at Shoreditch County Court
giving the respondent, Mrs Anna Marchant, of William Mews, Westminster, London
SW1, judgment for possession, arrears of rent and mesne profits.
D Gerrey
(instructed by Clifford Watts, Compton & Co) represented the appellant. The
respondent appeared in person. H K Woolf (instructed by the Treasury Solicitor)
appeared as amicus curiae.
Giving
judgment, LORD DENNING said: No 131 Clapton Common is an ordinary sort of
house. It is owned by Mrs Marchant. It was at one time a private
dwelling-house, but for the last 23 years she has let it off in single rooms to
men only. She has regularly put the same advertisement in the local newspaper:
‘Attractive bachelor service apartments. Superior house. Resident housekeeper,
every convenience.’ There are seven
bed-sitting rooms. Each room is simply but nicely furnished with a bed, table,
a couple of chairs and so forth. Each room has, of course, its gas ring and
grill, so that the residents can do a little cooking on their own, as meals are
not included. The bathroom and lavatory are shared. The housekeeper cleans the
rooms every day and provides clean linen every week. It is a very usual sort of
arrangement. Many young people live in bed-sitting rooms like this. The
question is whether the occupant of such a bed-sitting room has security of
tenure. Under the old Rent Acts before 1974 he had none. There was in those days
a big difference between furnished and unfurnished lettings. The tenant of an
unfurnished dwelling was protected from eviction. He had complete security of
tenure. But the tenant of a furnished dwelling had not. He was provided with
means of challenging the amount of rent he was charged, but these were not very
effective, because he had no security of tenure, or at any rate, only for a
very limited time if he challenged the rent. Now since the Rent Act 1974 the
tenant of a furnished dwelling is given security of tenure. He is protected
from eviction just as much as the tenant of an unfurnished dwelling. But does
this new protection extend to the occupier of one of those bed-sitting
rooms? That is the question raised by
this case. Obviously it is one of much importance.
First I must
describe the facts of this particular case. In June 1972 Mr Charters took a
room on the top of the house (the third floor). It was only a small room, 9 ft
5 in by 11 ft 6 in. He paid £6 a week at first, but this was afterwards increased
to £7 a week. He thought this was too high, and applied to the rent officer to
fix a fair rent. The rent officer reduced the sum payable to £4.25 a week, and
his decision was confirmed by the rent assessment committee. Mrs Marchant did
not agree with this. She gave Mr Charters notice to quit, and took proceedings
in the county court to turn him out. Mrs Marchant appeared in person; counsel
appeared for Mr Charters. The judge made an order for possession. Mr Charters
appealed to this court. Mrs Marchant also appeared in person before us. But the
case is of such general importance that we are glad to have the assistance of
Mr Woolf as amicus curiae. The relevant statutory provisions are these.
Under the Rent Act 1968, section 1 (1) says that:
A tenancy
under which a dwelling-house (which may be a house or part of a house) is let
as a separate dwelling is a protected tenancy. . . .
Section 2 (1)
(b) says that:
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, attendance [or any
furniture].
Section 2 (3)
says, however, that:
a
dwelling-house shall not be taken to be bona fide let at a rent which
includes payments in respect of attendance [or the use of furniture] unless the
amount of rent which is fairly attributaable to attendance [or use of
furniture]; having regard to the value of the attendance [or the use] to the
tenant, forms a substantial part of the whole rent.
By the Rent
Act 1974, schedule 4, the words which I have put in brackets, ‘or any
furniture,’ ‘or the use of furniture’ and ‘or the use’ were repealed. So
section 2 (3) must now be read without them. The result is that the use of
furniture does not deprive the tenant of protection, but the giving of
‘attendance’ may deprive him of security, depending on the amount of rent
attributable to the attendance.
Applying those
provisions to the present case, there are two questions to be considered.
First, was Mr Charters a tenant? Was
this one room let to him as a separate dwelling? If not, he has no protected tenancy. Second,
if he was a tenant, was the attendance given sufficiently substantial to
deprive him of protection? The county
court judge decided the first question in favour of Mr Charters. He held that
he was a tenant. But he decided the second question against Mr Charters. He
held that the ‘rent included services which were by no means minimal.’ So he made an order for possession. In order
to describe the facts, I will now read Mrs Marchant’s evidence:
I go to [the
house] practically every day. I occasionally sleep there. [It] is a fine old
house: a self-catering residential hotel for single men. Been running like this
for 25 years. Each resident has a room of his own. They are completely furnished–wall-to-wall
carpeting, curtains, bed, blankets, sheets, pillow, pillow case, towels–even
tea towels–one arm chair and two wooden chairs, wardrobe, occasional tables,
cooker, sink, with gas water heater, gas fire for heating, points for power.
Each room has own meter for gas and electricity. Every resident gets
daily cleaning of room, clean linen weekly, bathrooms are common. They can get
an evening meal by arrangement with housekeeper; they pay her. She is engaged
on basis that she will provide food if required. All rooms are provided with
cutlery, crockery, and cooking utensils–all that is necessary. They can also
get breakfast and lunch. Through the years, I find more and more people are
providing their own meals. The housekeeper keeps the money for the food she
provides.
On that
evidence, the first question is, was Mr Charters a tenant or only a
licensee? The law on this subject has
been developed greatly in the last 25 years: I might almost say revolutionised.
In 1952 I collected several of the cases in Errington v Errington and
Woods [1952] 1 KB 290, and since that time there have been many more. The
difference is very important under the Rent Acts (including the 1974 Act),
because a ‘tenant’ is given complete security of tenure but a licensee is not.
There are four or five cases, somewhat like the present, to which we have been
referred. The first is Appah v Parncliffe Investments Ltd [1964]
1 WLR 1064. A house had been split up into 17 different rooms, each with its
own Yale lock and key. The rooms were furnished. No meals were provided, but
the rooms were cleaned daily, and beds made. Fresh linen was provided. A lady
took one of the rooms, but owing to the negligence of the owners someone was
able to break into her room and steal her belongings. It was held that she was
not a tenant but a licensee for reward, and so able to sue the owner for
negligence. The next case is Abbeyfield (Harpenden) Society Ltd v Woods
[1968] 1 WLR 374. A charitable society had converted a big house into an
old people’s home with 12 rooms. They let one of the rooms unfurnished to an
old man of 85. He furnished it himself. The society provided food in a common
dining-room, and so forth. There was a resident housekeeper. It was held that
the old man was only a licensee and not a tenant. So he was not protected by
the Rent Acts and had to go.
The nearest
case to the present case is Luganda v Service Hotels Ltd [1969] 2
Ch 209. A student was reading for the Bar. He took a furnished room in a
building called the Queensborough Court Hotel. There were 88 rooms. They were
said to be ‘let’ out to tenants. Every student had a Yale key for his room. It
was a bed-sitting room with a double gas ring. He got his own meals and
provided his own towels and soap. The chambermaids came in every day and made
the bed and cleaned the room. Every week they changed the linen. It was held
that he was a contractual licensee and not a tenant (see [1969] 2 Ch at 219C).
But as he had applied to the rent tribunal, he was protected for a limited
period from being evicted (see 219H). The next case arose under the planning
Acts, Mayflower Cambridge Ltd v Secretary of State for the
Environment and Another (1975) 30 P & CR 28. A building in Cambridge
had been erected for students to stay, but it was not needed for them, so it
was used for visitors who wanted to come to Cambridge. The question was whether
the change of use was to an ‘hotel.’
Lord Widgery CJ said: ‘The essence of an hotel is that it takes
transient passengers.’ That may well be
a test under the planning Acts, but it is not a test for seeing whether there
is a tenancy or a licence. The last case was reported on March 26 of this year
in The Times newspaper. It is R v South Middlesex Rent Tribunal ex
parte Beswick. A young lady lived in a single room at a YWCA hostel. It was
a furnished room. It was her sole home. She was permanent, not temporary. In
common with other residents, she had the use of a kitchen, dining-room,
living-room, laundry-room, bathroom and toilet. It was held that she was not a
tenant but a licensee. So the fair rent was to be fixed, not by the rent
officer, but by the rent tribunal.
Gathering the
cases together, what does it come to?
What is the test to see whether the occupier of one room in a house is a
tenant or a licensee? It does not depend
on whether he or she has exclusive possession or not. It does not depend on
whether the room is furnished or not. It does not depend on whether the
occupation is permanent or temporary. It does not depend on the label which the
parties put upon it. All these are factors which may influence the decision but
none of them is conclusive. All the circumstances have to be worked out.
Eventually the answer depends on the nature and quality of the occupancy. Was
it intended that the occupier should have a stake in the room, or did he have
only permission for himself personally to occupy the room, whether under a
contract or not? In the latter case he
is a licensee. Looking at the position in this case, in my opinion Mr Charters
was not a tenant of this one room. He was only a licensee. A contractual
licensee, no doubt, but still only a licensee. So he does not have security of
tenure under the Rent Acts. He is not protected against eviction. On this point
I differ from the judge. It is sufficient for the deciding of this case. Mr
Charters has no right to stay. This decision has its bearing on another aspect
of the case. Mr Charters, as I have said, applied to the rent officer to
register a fair rent, and from the rent officer it went up to the rent
assessment committee. That would have been the appropriate procedure if Mr
Charters had really been a tenant, for then the case would have come under Part
IV of the Rent Act 1968. But it was not the appropriate procedure if he was
only a contractual licensee of a furnished room, for in that case he should
have applied to a rent tribunal under Part VI of the Rent Act 1968. Mrs
Marchant took this very point before the rent officer and the rent assessment
committee, but they overruled her, holding that Mr Charters was a tenant. Mrs
Marchant has, I understand, applied to the Divisional Court to get the matter
put right. If he is only a licensee, it does appear that it was for the rent
tribunal and not for the rent officer. But I would point out that, if he did go
to the rent tribunal, that tribunal has power under Part VI to give him
security of tenure for a time not exceeding six months.
There remains the other point about ‘attendance’
which has been much discussed before us. The rent here clearly included payments
in respect of attendance, but the question is whether the amount fairly
attributable to it formed a substantial part of the whole rent, so as to take
the tenancy out of protection under section 2 (3) of the 1968 Act. The word
‘attendance’ was much considered by the House of Lords in Palser v Grinling
[1948] AC 291. Lord Simon LC at pp 310 and 311 said that attendance means
‘services personal to the tenant provided by the landlord for the benefit or
convenience of the individual tenant in his use or enjoyment’ of the room. It
does not include services in regard to the common parts, such as cleaning the
common staircase, or the porter at the bottom. Applying that test, it is quite
plain that the attendance here included these services: each day the room was
cleaned, each day the rubbish was removed, and each week the dirty linen was
removed and clean linen was supplied in its place. The fact that Mr Charters
may have refused it on some occasions does not affect the matter. Then did the
amount of rent attributable to these services form a substantial part of the
whole rent, having regard to their value to the tenant? This is a difficult point, but it must be
rememebered that in these days such attendance may cost quite a lot of money.
The women who perform these domestic services command high wages. The judge
found that in this case the rent attributable to it was ‘by no means
minimal.’ He did not express it in those
very words, but I think he must have intended to find that it did form a
substantial part of the whole rent. On that account he held that it was not a
protected tenancy and made an order for possession. It is a matter which
depends very much on the facts, and I am
think the appeal should be dismissed.
ORR LJ: I agree.
WALLER LJ: I agree.
The appeal
was dismissed, with an order for payment of the respondent’s costs out of the
legal aid fund.
