Today judgment was handed down by the Court of Appeal in the case of Phillips v Garraway [2026] EWCA Civ 55. Ben Doyle successfully represented the landlords as sole counsel in the Court of Appeal, as well as on the first appeal.
The parties had entered a rudimentary written tenancy agreement which referred to ‘Rent’ being a minimum of two days work (presumed to be per week) on the landlord’s estate by the tenant. The parties had not quantified the value of those services by agreement or otherwise.
The landlords served notice to quit and brought possession proceedings. There was no dispute that this was a tenancy rather than a licence. The question was whether it was an assured shorthold tenancy with security of tenure under the Housing Act 1988, or simply a common law tenancy terminable by notice to quit.
At first instance, the district judge found that the tenancy fell within Schedule 1 of the Housing Act 1988 (tenancies which cannot be assured tenancies), paragraph 3 (a tenancy under which for the time being no rent is payable) and accordingly had been terminated by the notice to quit and the landlords were entitled to possession.
On first appeal, Her Honour Judge Venn agreed, following the Rent Acts authorities such as Barnes v Barratt [1970] 2 QB 657, which held that rent must mean a sum of money and that services performed by the tenant must be quantified in money terms in value in order to constitute rent.
On further appeal, the Court of Appeal also agreed. Males LJ, with whom Moylan LJ agreed, gave the leading judgment, holding that Parliament intended the word ‘rent’ in the Housing Act 1988 to be given the same meaning as it had been given by judicial decision for the purpose of the Rent Acts. Males LJ gave four principal reasons:
(1) the absence of a definition of ‘rent’ in the Housing Act 1988 or any indication that ‘rent’ was supposed to have a different meaning than it had under the Rent Acts;
(2) the use of the same language in paragraph 3 of Schedule 1 as that which had been used to exclude tenancies from Rent Acts protection;
(3) the numerous references in the Housing Act 1988 to rent ‘paid’ or ‘payable’ or the ‘amount’ of the rent and the unworkability of various sections if ‘rent’ did not mean payment of money (or goods or services with an agreed monetary value); and
(4) the fact that tenancies granted for money’s worth were protected under the Protection from Eviction Act 1977 indicated that Parliament was well aware of the possibility of extending statutory protection to this sort of tenancy, but chose not to adopt the same definition when dealing with assured tenancies within the scope of the 1988 Act itself.
Males LJ considered that the Barras principle of statutory interpretation (where an Act uses a word or phrase that has been the subject of previous judicial interpretation in the same or a similar context it may be possible to infer that the legislature intended the word or phrase to bear the same meaning) had considerable force in this case.
Falk LJ gave a short concurring judgment, describing it as ‘telling’ that the language of paragraph 3 of Schedule 1 repeated the exemption under the previous legislation, and considering that section 3A of the Protection from Eviction Act 1977 (which was introduced by the Housing Act 1988) provides ‘an important indicator of a deliberate legislative choice’ to ensure that tenancies granted in exchange for money’s worth could benefit from the protection from eviction conferred by the Protection from Eviction 1977, but not the greater protection conferred by the assured tenancy regime. Falk LJ was less convinced that extending the concept of rent to include unquantified money’s worth would be unworkable, but described these ‘minor reservations’ as being ‘comfortably outweighed by the other points’.
The judgment can be found here.
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Monday, 9 February 2026
