Otter v Norman

Rent Act 1977 — Exception to protected tenancy — Rent includes payments in respect of board — Meaning of “board” — Provision of continental breakfast — Whether such provision excepts tenancyThe appellant was the tenant of a room in a large house. The house was divided into 36 rooms let as bed-sitting rooms. Part of the consideration for the rent was the daily provision of a continental breakfast in a large communal kitchen. The respondent served notice to quit and claimed possession. Both in the county court and in the Court of Appeal ([1987] 2 EGLR 125) the claim for possession was upheld on the ground that the tenancy was not a protected tenancy as by virtue of section 7(1) of the Rent Act 1977 the room was “bona fide let at a rent which includes payments in respect of board or attendance”. Three possible meanings of “board” had been advanced: (1) the provision of all meals; (2) the provision of more than one meal a day; or (3) the provision of one adequate meal. However the appellant contended on appeal that “board” requires at least the provision of one main meal in addition to breakfast. Held The appeal was dismissed; the tenancy was not a protected tenancy. In Wilkes v Goodwin [1923] 2 KB 86 the Court of Appeal had to consider the meaning of a similar exception relating to “board, attendance, or use of furniture” found originally in a proviso to section 2(2) of the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915 and re-enacted in the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. The central ratio expressed in that case was that the word “board” was used quite generally and without limitation; any amount of board would suffice to satisfy a test of fact and degree. In its later re-enactment of the same proviso in the Rent and Mortgage Interest Restrictions Act 1923, parliament introduced a test of substantially in relation to the provision of attendance and furniture but not for board. The total absence of any test of substantiality in the exception now in section 7(1) of the Rent Act 1977 is quite inconsistent with the submission that nothing less than the provision of two meals can amount to “board” at all. Wilkes v Goodwin [1923] 2 KB 86 adopted. Robert Pryor QC and Mark Dencer (instructed by Oliver O Fisher & Co) appeared for the appellant; and David Neuberger QC and Paul de la Piquerie (instructed by Boodle Hatfield) appeared for the respondent.