Seeking the impossible: a possession order just against the mesne tenant

In Y & A Holdings Limited v (1) Sapphire Residential Limited and (2) Rima Tverjionaite (County Court at Clerkenwell & Shoreditch, 7 August 2026), the Court granted re-entry, set aside the possession order and dismissed the claim for possession in circumstances where a possession order had been obtained and enforced following the ending of a rent-to-rent agreement, resulting in the unfortunate eviction by bailiffs of the sub-tenants, including the Second Defendant.

Factual background

The First Defendant had held multiple tenancies with the Claimant, giving them a contractual right to let out the property ie a rent-to rent agreement. Pursuant to that agreement, the First Defendant had granted the Second Defendant an assured shorthold tenancy (now a fully assured tenancy) of one of the rooms in the Property. The other rooms in the property were let out to other tenants.

In July 2025, the Claimant served the First Defendant with a notice to quit, which expired in September 2025. The Claimant’s position was that the First Defendant did not respond to the notice to quit such that it was necessary to issue a possession claim. This was somewhat difficult to believe as the companies appeared to be connected, with the Claimant’s managing agent sharing the same address as the First Defendant. 

A possession claim was issued against the First Defendant and a possession order obtained in November 2025. None of the occupiers were mentioned in the claim form in breach of CPR PD 55A para 2.1(5).

 The Claimant subsequently applied for a warrant for possession which was executed on 12 March 2026, rendering the Second Defendant and the other tenants of the Property street homeless.

The Second Defendant made an application for re-entry and to set aside the possession order on 24 March 2026. The application was listed for a hearing on 26 March 2026 where the Court added the Second Defendant as a party to the claim, granted her re-entry pending determination of the application, and listed the application for a longer hearing so as to provide the Claimant with an opportunity to respond to the same. The Claimant did not file any statements or written submissions despite being directed by the Court to do so. The Claimant also refused to settle the matter by consent in the face of an unanswerable defence. 

Possession orders operate in rem, not in personam

It is trite law that a possession order is an order in rem (ie in respect of a thing) rather than in personam (ie as against an individual). 

Given that a possession order operates in rem, it not only entitles the bailiffs to evict anyone found on the premises, but obliges them to do so, irrespective of whether they were named in or served with the possession proceedings: R v Wandsworth County Court ex p Wandsworth London Borough Council [1975] 1 WLR 1314 (QBD). This is precisely the situation that occurred in this case: everyone in the property was evicted pursuant to the possession order. 

As such, it is not possible to get a possession order ‘just against the mesne tenant’. 

So how does the landlord in a case like this end its agreement with the mesne tenant?

The answer is simple: the notice to quit operates to end the agreement. 

The First Defendant in this case did not have the protection provided by the Housing Act 1988, as only an individual can be an assured tenant (section 1). Further, no protection is provided under the Protection from Eviction Act 1977 as that only applies to residential occupiers (section 1). Rent-to-rent agreements are also not business tenancies with protection under the Landlord and Tenant Act 1954 as the premises are not occupied by the company (section 23).

Such tenancies therefore have no statutory protection and the common law applies. Such tenancies therefore end through the effluxion of time unless (as here) the tenancy itself makes provision that it will become a contractual periodic tenancy at the end of the term. In those circumstances, the tenancy can be terminated by service of a valid notice to quit. If the tenancy itself makes provision for a notice period, then that amount of notice must be given.

Where a tenant has no statutory protection, a valid notice to quit operates to end the tenancy without a court order and terminates the tenancy whether or not the tenant agrees. 

What happens to the occupier’s tenancies?

An assured tenancy cannot be brought to an end other than by obtaining and executing a possession order under sections 7 or (previously) 21 of the Housing Act 1988 (section 5). 

A notice to quit ending the agreement with the mesne tenant therefore does not operate to end the occupier’s assured tenancies by reason of section 18 of the Housing Act 1988, which provides that “if at any time— (a) a dwelling-house is for the time being lawfully let on an assured tenancy, and (b) the landlord under the assured tenancy is himself a tenant under a superior tenancy; and (c) the superior tenancy comes to an end, then, subject to subsection (2) below, the assured tenancy shall continue in existence as a tenancy held of the person whose interest would, apart from the continuance of the assured tenancy, entitle him to actual possession of the dwelling-house at that time”. 

As such, section 18 means that where an intermediate tenancy is ended, the superior landlord steps into the shoes of the sub-tenant’s landlord and becomes the landlord under the assured tenancy. It means that the superior landlord is not entitled to actual possession ie that which would be obtained by obtaining and executing a possession order.

The hearing

At the hearing, the Claimant maintained its position that the Court should not set aside the possession order but record that it is only in respect of the First Defendant. 

Deputy District Judge Balroop held that he cannot make a partial possession order as the possession order is against the land, and it is impossible to make a possession order against an individual.

The Judge considered that the Second Defendant had acted promptly and had a good reason for not attending the hearing as she was not a party and was not served with the claim. The Judge held that the Claimant either knew or ought to have known that there were occupiers yet did not include them in breach of CPR PD 55A paragraph 2.1(5). The Judge considered that this meant that the claim was not properly issued in any event.

The Judge was satisfied that, at the time the possession order was made, the Second Defendant held an assured shorthold tenancy of a room in the Property which had not been terminated. He was satisfied that this tenancy would continue with the Claimant becoming the immediate landlord pursuant to section 18 of the Housing Act 1988. He was satisfied therefore that the Second Defendant had a compelling defence to the claim.

The Judge therefore allowed the Second Defendant’s application, set aside the possession order and the warrant, and dismissed the claim for possession.

The Judge also ordered the Claimant to pay the Second Defendant’s costs on the indemnity basis: the legal position had been explained to the Claimant in detail at the first hearing and in writing multiple following the hearing. The Judge considered that the Claimant had had every opportunity to resolve the matter without the hearing, that it was clear how the matter would be resolved, and that the Claimant had unreasonably failed to properly consider the legal position. 

Cara Hall represented the Second Defendant, instructed by William Ford of Osbornes Law