In the case of Wasserman v Loyalart Flat Management Company Limited, the Upper Tribunal allowed Ms Wasserman’s appeal against the decision of the First Tier Tribunal that she was in breach of the parking covenant in her lease. The case illustrates that a waiver of a breach of covenant by a landlord is revocable even if it is for an extended period of time but reasonable notice must be given to the lessee before any action can be taken to enforce it.
Ms Wasserman was the original lessee of a flat in a development constructed in the 1980s comprising a block of six flats with three garages and a forecourt with six parking spaces. Her lease contained a covenant not to park anywhere other than in the garage.
She had been parking in the forecourt rather than in her garage for 37 years and claimed that she had the consent of the freeholder to do so. A number of the other residents had objected to her parking in the forecourt and the directors of the freehold had threatened legal proceedings in 2008. At an AGM in 2013, the freeholder decided that parking in the forecourt would be for residents only with them having one space each.
At a later AGM in 2021, the freeholder changed the parking arrangements so that two of the parking spaces were specifically allotted to two of the flats.
The freeholder issued a claim against Ms Wasserman in July 2024 for an order that she was in breach of the parking covenant.
The First Tier Tribunal (“FTT”) had found that the landlord had waived the breach of covenant by its decisions at the AGMs in 2013 and 2021 but had since given notice of revocation of the waiver by issuing the proceedings.
The issue for the Upper Tribunal was whether the landlord could enforce the parking covenant after waiving it without first giving reasonable notice.
Ms Wasserman’s appeal was based on three grounds:
- The FTT should have found that the freeholder had permanently abandoned its right to enforce the parking covenant through waiver by acquiescence over 37 years; the parking covenant was no longer enforceable because of the freeholder’s conduct and omissions
- The FTT had failed to decide her claim that she had been granted a right to park;
- The FTT had erred in law in deciding that the freeholder was entitled to revert to its strict legal rights after giving proper notice as there was no evidence of such notice.
She succeeded on the third ground only. The FTT was correct that the freeholder’s waiver was revocable but an application to a court or tribunal does not of itself create a cause of action. It is made on the basis that a cause of action already exists. It was necessary therefore for the freeholder to give her notice that the waiver was being revoked and that she should thereafter park in the garage only.
