Renee Wasserman v Loyalart Flat Management Company Limited

Long acquiescence in a continuing lease breach may, in context, make later enforcement inequitable where the landlord’s conduct has altered the parties’ relationship. The cited cases involved profound or costly changes of position; long, cost-free use alone did not establish an irrevocable release. A temporary waiver or promissory estoppel suspends the covenant, so conduct during suspension is not a breach. The landlord may resume enforcement only after reasonable notice, and proceedings that assume the right to enforce has already resumed do not themselves give that notice. Under Law of Property Act 1925, s 62, a longstanding licence may become an easement on a grant or assignment of a lease, but later tolerance does not itself create an easement for an original lessee. The FTT determining breach has jurisdiction to consider whether a claimed easement means no breach occurred.

Mrs Wasserman, the original lessee of a flat and garage, had parked on the estate forecourt for about 37 years, contrary to a lease covenant requiring her to park in the garage. Loyalart, the freeholder and landlord, applied to the First-tier Tribunal (Property Chamber) for a determination of breach under the Commonhold and Leasehold Reform Act 2002. The FTT found that decisions at general meetings in 2013 and 2021 had temporarily waived enforcement, but that Loyalart had revoked the waiver by its actions, including its application. It determined that Mrs Wasserman was in breach.

On appeal from the FTT decision in Ref LON/00AC/LBC/2024/0052, Mrs Wasserman argued that the covenant had been permanently released, that Loyalart had not given reasonable notice before resuming enforcement, and that she had acquired an easement to park. The central questions were whether the landlord could enforce the covenant and whether the claimed parking right prevented a finding of breach.

1. Appeal allowed in part. The appeal succeeded on ground 3 only. The Tribunal set aside the FTT’s finding that Mrs Wasserman was in breach and substituted a finding that she was not in breach up to and including the date of the FTT’s decision.
2. Permanent release by acquiescence. The FTT erred in treating the claim of permanent release as equivalent to the suspensory waiver or promissory estoppel considered in Swanston Grange (Luton) Management Limited v Langley-Essen [2007] EWLands LRX-12-2007. A landlord’s conduct may make enforcement inequitable where it has put the parties in an altered relationship. The cases relied on by Mrs Wasserman involved substantial consequences of non-enforcement: high-rise development in AG of Hong Kong v Fairfax Limited [1996] UKPC 55, expensive flooring installed with consent in Faidi v Elliott Corporation [2012] EWCA Civ 287, and a long-running off-licence in Hepworth v Pickles [1900] 1 Ch 108. Mrs Wasserman had incurred no cost and had not changed her position. Her parking right was not irrevocably released.
3. Revocable waiver and notice. The FTT’s unappealed finding that Loyalart had waived enforcement at least through the 2021 meeting stood. As described in Swanston Grange, a suspensory waiver leaves the covenant obligation suspended; the landlord may resume its strict rights for the future on reasonable notice. The application to the FTT did not itself give that notice because it asserted a cause of action that had to exist already. Post-2021 correspondence was not in evidence before the FTT. The Tribunal added that evidence available to, and capable of being produced before, the FTT could not properly have been introduced on appeal.
4. Claimed easement. The FTT was wrong to consider that it lacked jurisdiction to decide whether Mrs Wasserman had an easement: if she did, she could not be in breach. But under s 62 of the Law of Property Act 1925, a longstanding licence may be converted into an easement on the grant or assignment of a lease. The circumstances discussed in Duchess of Bedford House RTM Company Limited v Campden Hill Gate Limited [2023] EWCA Civ 1470 involved that context. No assignment occurred here, and later tolerated parking could not create an easement. Ground 2 therefore failed.

The Judge urged the leaseholders to consider mediation to resolve their continuing dispute about parking.

1. Upper Tribunal (Lands Chamber) – Appeal allowed on ground 3 only. The finding of breach was set aside and a finding substituted that Mrs Wasserman was not in breach up to and including the date of the FTT decision.
2. First-tier Tribunal (Property Chamber) – In October 2025, the FTT found no breach of the nuisance covenant but found a breach of the parking covenant, concluding that Loyalart had revoked its temporary waiver by its actions and application.