Arrangements in blocks of flats do not always reflect the strict terms of the leases. A freeholder may allow a leaseholder to use a parking space which is not included in the lease, or may take no action while that use continues for many years. Both sides may then come to regard the arrangement as settled.
The Upper Tribunal’s decision in Renee Wasserman v Loyalart Flat Management Company Limited [2026] UKUT 334 (LC) shows why that assumption can be unsafe. Longstanding consent or acquiescence may prevent a freeholder from enforcing a covenant for a time, but it will not necessarily create a permanent right. Leaseholders seeking to protect accrued rights or benefits should seek legal advice on formally documenting the right.
Case facts
Mrs Wasserman’s lease included a garage and contained a covenant not to park elsewhere on the estate. In practice, she had parked on the forecourt for approximately 37 years and said that this had been agreed with the then freeholder in around 1988.
The parking arrangements were later recorded in company minutes. Minutes from 2013 referred to residents using the forecourt, while minutes from 2021 stated that two visitor spaces should be allotted to Flats 4 and 5. The 2021 minutes also contemplated deeds of variation and Land Registry registration, but those steps were never completed.
The First-tier Tribunal found that the freeholder had waived the breach for a period, but concluded that the waiver had ended and that Mrs Wasserman was in breach. She appealed.
What is the effect of waiver and promissory estoppel?
The Upper Tribunal confirmed an important distinction between suspending a freeholder’s rights and extinguishing them permanently.
A waiver may arise where a freeholder does not insist on compliance with a lease covenant. This can also prevent the freeholder from enforcing its strict rights where it has clearly represented that it will not do so and the leaseholder has relied on that representation (also known as promissory estoppel). In either case, the usual effect is to suspend the freeholder’s rights, rather than remove the covenant from the lease.
Mrs Wasserman argued that the freeholder had permanently abandoned or released the parking covenant. The Upper Tribunal rejected that argument. Previous cases in which covenants had become permanently unenforceable involved substantial and costly changes of position, including extensive development, expensive works undertaken with the freeholder’s approval, and the long-running operation of a business.
In this case, however, Mrs Wasserman was unable to rely on an estoppel argument. She had benefited from more convenient parking but had not incurred expenditure or otherwise materially changed her position in reliance on it. The parking covenant therefore remained in place. Thirty-seven years of tolerated use was not, by itself, enough to create an irrevocable right.
In terms of whether a freeholder can return to the strict terms of the lease, a freeholder may usually bring a waiver or promissory estoppel to an end for the future by giving reasonable notice that it intends to rely again on the strict terms of the lease.
The Upper Tribunal found in this case that the freeholder had not properly notified the leaseholder of the termination of their waiver. The fact that Tribunal proceedings had commenced did not itself amount to the required notice, and therefore the freeholder could not enforce the restriction on parking. However, following this decision it is now open to the freeholder to terminate the permission.
Why informal consent may not be enough
The case illustrates the difference between an arrangement which is accepted in practice and one which changes the parties’ legal rights permanently.
The freeholder’s words or conduct may amount to a licence, waiver, or promissory estoppel. That may provide the leaseholder with protection against immediate enforcement, but it is not necessarily a substitute for a formal variation of the lease. The freeholder may later change its position and, after giving reasonable notice, seek to enforce the original covenant.
This risk was apparent in Wasserman. The parties had discussed formalising the parking allocation through deeds of variation and registration, but did not complete that process. The leaseholder was therefore left relying on the history of the arrangement rather than an express right contained in her lease.
What should freeholders and leaseholders do?
- Check the leases and plans. Parking provisions may differ between flats. Any proposed allocation should be considered against all affected leases and the rights of other leaseholders.
- Decide whether the consent is temporary or permanent. A temporary consent should be recorded in writing, together with any conditions and the circumstances in which it may be withdrawn.
- Formalise any permanent arrangement. If a parking allocation or other consent is intended to endure, the parties should consider whether a deed of variation and Land Registry registration are required. An agreement in principle or meeting minute is not the same as a completed legal document.
- Give reasonable notice before enforcement. A freeholder which has waived a breach, or whose conduct may give rise to promissory estoppel, should give clear and reasonable notice before returning to the strict terms of the lease. Starting proceedings is not a substitute for prior notice.
- Seek legal advice promptly. A leaseholder who receives notice that the freeholder intends to withdraw a consent or enforce the original covenant should obtain legal advice as soon as possible. The advice should consider whether waiver or promissory estoppel has arisen, whether the notice is sufficiently clear, and whether the period allowed is reasonable. Advice should be sought before the notice expires or proceedings begin.
Key takeaway
The Wasserman decision is not simply about whether 37 years is long enough to acquire a parking right. It highlights the wider risk of allowing informal consents to continue without bringing the lease into line with the arrangement on the ground.
A leaseholder should not assume that the freeholder’s knowledge, consent, or prolonged inaction has created a permanent entitlement. Waiver or promissory estoppel may prevent immediate enforcement, but will generally suspend the freeholder’s rights rather than extinguish them. The freeholder may later return to the lease terms after giving reasonable notice.
If an arrangement is intended to last, the safer course is to formalise it while the parties remain in agreement. If notice withdrawing an informal arrangement is received, legal advice should be sought promptly rather than waiting for enforcement action.
To discuss parking rights, informal lease consents, waiver and estoppel, deeds of variation, or residential property disputes, please contact Robert Mackay or Simran Sangherra.
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