UK Construction and Law

Thirty seven years of tolerated breach suspended the covenant but did not release it

By Staff Writer  |  2 September 2026

A landlord that had let a parking breach run since 1988 had given up its rights only for the time being. It still lost, because issuing proceedings is not the reasonable notice needed to take those rights back.

Brinsdale Park in London NW4 is a block of six flats with three garages and a forecourt of six parking spaces, four of them demised to flats 1, 2, 3 and 6. The lease of flat 4, granted in 1987, demised the flat and a garage and contained a covenant not to park anywhere on the estate other than in the garage. It was not in dispute that the leaseholder had parked on the forecourt for about 37 years, on her account by agreement with the freeholder of the day in around 1988.

The freehold is owned by a company in which each of the six leaseholders holds a share. Annual general meetings in March 2013 and August 2021 both dealt with parking, the second recording that two spaces marked for visitors should be allotted to flats 4 and 5 and that a deed of variation and registration should follow. No deed was ever made. In July 2024 the company applied to the First-tier Tribunal under section 168(4) of the Commonhold and Leasehold Reform Act 2002 for a determination that the covenant had been breached, and in October 2025 it got one.

Suspension is not release

In Wasserman v Loyalart Flat Management Company Limited [2026] UKUT 334 (LC), decided on 28 August 2026, Upper Tribunal Judge Elizabeth Cooke agreed that the First-tier Tribunal had failed to engage with the argument actually being made. The leaseholder was not saying that the landlord's right had been suspended and could be resumed. She was saying that long acquiescence had released her from the covenant altogether.

That argument failed on the facts. The tribunal examined the decisions in which a covenant has been treated as abandoned and found what they had in common: 22 acres of high rise development built in the face of a covenant to build villas, an expensive wooden floor installed with the landlord's express consent under a covenant to keep floors carpeted, an off licence traded for 24 years. In each the party relying on the acquiescence had committed itself to something large and expensive that could not be undone.

Thirty seven years of parking had cost this leaseholder nothing and changed nothing. Length of tolerance on its own does not release a covenant; what releases it is what the other party has irreversibly done in reliance.

The tribunal added a point that will be familiar to anyone advising a party that has been operating outside its own contract for years. The leaseholder, who is a solicitor, had known the terms of her lease throughout and had never had it varied, even during her own years as a director of the company. She therefore always knew she was parking in breach.

Where the landlord lost it

Having found that the waiver was temporary rather than permanent, the tribunal turned to how a temporary waiver is brought to an end. A party that has represented it will not insist on its strict rights may revert to them for the future on giving reasonable notice. The First-tier Tribunal had accepted that no formal written notice had been given, but treated the landlord's actions, and in particular the making of the application, as evidence of an intention to revert.

But an application to a court or tribunal does not of itself create a cause of action; it is made on the basis that the cause of action already exists.

Upper Tribunal Judge Elizabeth Cooke

Correspondence since 2021 was said to have given the necessary notice, but it had not been put in evidence before the First-tier Tribunal and could not be introduced on appeal. The finding of breach was set aside and a finding substituted that there had been no breach up to the date of the First-tier Tribunal's decision. A separate argument that section 62 of the Law of Property Act 1925 had converted the tolerated parking into an easement also failed, because there had been no assignment; the appellant is the original lessee.

The tribunal ended by urging all six leaseholders into mediation, on the footing that the cost of it would be money well spent. The parking dispute is untouched by the result. What the decision settles is the order of operations: write first, then enforce.