Background
Mrs Renee Wasserman held a lease of Flat 4 at Brinsdale Park that prohibited her from parking anywhere on the estate other than in her garage. She had nevertheless parked on the forecourt for approximately 37 years. Loyalart Flat Management Company Limited, the resident-owned freeholder, had expressly permitted her to use a forecourt space through decisions taken at general meetings in 2013 and 2021.
Loyalart applied under section 168(4) of the Commonhold and Leasehold Reform Act 2002 for a determination that Mrs Wasserman had breached the parking covenant. The First-tier Tribunal found that Loyalart had temporarily waived the breach but had revoked that waiver through its subsequent actions, including commencing the proceedings. It therefore held that she was in breach. Mrs Wasserman appealed, arguing that the covenant had been permanently abandoned, that Loyalart had not given reasonable notice before reverting to its strict rights, and that she had acquired a legal right to park on the forecourt.
The Court’s Holding
The Upper Tribunal allowed the appeal only on the reasonable-notice ground. Loyalart’s long acquiescence and the meeting resolutions created a revocable licence or waiver, not a permanent release from the parking covenant. Unlike authorities involving extensive development, substantial investment, or expensive alterations undertaken with a landlord’s consent, Mrs Wasserman had not profoundly or expensively changed her position in reliance on Loyalart’s conduct.
However, Loyalart could resume enforcement only after giving reasonable notice that it intended to revert to its strict legal rights. Commencing proceedings could not itself supply that notice because an application must rest on a breach that already exists; it cannot create the cause of action on which it relies. With no sufficient evidence before the First-tier Tribunal of earlier notice, the Upper Tribunal set aside its breach finding and substituted a determination that Mrs Wasserman was not in breach up to and including the date of the First-tier Tribunal’s decision.
The Tribunal also rejected Mrs Wasserman’s claimed easement. Although the First-tier Tribunal should have addressed that argument, section 62 of the Law of Property Act 1925 could not convert her permission to park into an easement because she was the original lessee and there had been no later grant or assignment capable of producing that effect.
Key Takeaways
- A landlord’s prolonged acquiescence in a continuing lease breach does not necessarily release the covenant permanently; an irrevocable waiver requires circumstances making renewed enforcement inequitable.
- A landlord seeking to end a temporary waiver must give reasonable notice before treating later conduct as a breach. Starting proceedings is not, by itself, sufficient notice.
- Section 62 of the Law of Property Act 1925 did not convert this original lessee’s longstanding permission to park into a legal easement without a relevant later conveyance.
Why It Matters
The decision clarifies the distinction between permanently abandoning a lease covenant and temporarily suspending its enforcement through waiver or promissory estoppel. Even decades of tolerated noncompliance may leave the underlying covenant intact where the tenant has not materially changed position in reliance on the landlord’s conduct.
For residential landlords, the ruling also underscores the procedural importance of clearly notifying a leaseholder that an indulgence has ended and allowing reasonable notice before seeking a statutory determination of breach. Proceedings cannot retrospectively turn previously permitted conduct into an actionable breach.