The Upper Tribunal (Lands Chamber) has held that the FTT erred in law in how it approached a leaseholder's claim of permanent release from a parking covenant after about 37 years of forecourt parking, but dismissed her appeal on that ground.
Key facts
- Who: Mrs Renee Wasserman, lessee of flat 4 Brinsdale Park, and Loyalart Flat Management Company Limited, the resident-owned freeholder.
- From: Judgment dated 28 August 2026
- Source: Renee Wasserman v Loyalart Flat Management Company Limited [2026] UKUT 334 (LC)
Brinsdale Park, London NW4, is a block of six flats with three garages and a forecourt with six parking spaces. Mrs Wasserman has been the lessee of flat 4 since 1987. Her lease covenants "not to park vehicles in any part of the Estate other than in the Garage and not to obstruct or interfere with the access to the Estate or the Buildings thereon". The freeholder is Loyalart, a resident-owned company in which each of the six leaseholders has a share.
It was common ground that Mrs Wasserman had parked on the forecourt, not in her garage, for about 37 years. She said she agreed this around 1988 with the then freeholder. The FTT made no findings on how that happened but recorded, and did not reject, her evidence. In 2008 the company's directors threatened legal proceedings, but none were begun. Minutes of general meetings in 2013 and 2021 dealt with parking spaces on the forecourt, and Mrs Wasserman signed or chaired those meetings as a director.
In July 2024 Loyalart applied to the First-tier Tribunal (FTT) under section 168(4) of the Commonhold and Leasehold Reform Act 2002 for a determination that the parking covenant had been breached.
The FTT found that Loyalart had waived the breach by decisions made in general meeting in 2013 and 2021. It also found that Loyalart had since given notice of revocation of the waiver, by issuing the proceedings if not before. It therefore found Mrs Wasserman in breach.
Mrs Wasserman's argument on appeal was that, after 37 years of acquiescence, Loyalart had permanently lost the right to enforce the covenant, rather than merely suspending it.
The Upper Tribunal agreed that the FTT erred in law. The FTT treated the case as like an earlier decision, Swanston Grange, which concerned promissory estoppel, and so did not engage with the argument that the covenant had been released altogether.
Even so, the appeal failed on this point. The tribunal looked at cases in which a covenant was held abandoned or irrevocably waived: 22 acres of high-rise development in Hong Kong, expensive wooden flooring installed with the landlord's express consent, and an off-licence run for 24 years. What those cases had in common, it said, was the extent of what had been done as a consequence of the failure to enforce the covenant.
What this means for leaseholders and landlords
In this case, about 37 years of tolerated forecourt parking was not enough for the tribunal to find that the covenant had been permanently released. A claim of release was distinguished from a temporary waiver that the landlord can end on reasonable notice, and the tribunal looked at what had been done as a result of the failure to enforce.
If you are involved in a dispute about a lease covenant, check your lease and any correspondence, meeting minutes or consents, and consider getting advice.
Sources
- Renee Wasserman v Loyalart Flat Management Company Limited [2026] UKUT 334 (LC), Upper Tribunal (Lands Chamber), 28 August 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/334