Most leases come with many rules, such as where you can park, whether you can keep a pet, and what you can and cannot alter. In practice, landlords and management companies often let some of these conditions slide for years. So what happens when, after years of turning a blind eye, they suddenly decide to enforce a rule? A recent Upper Tribunal decision gives a clear and practical answer that matters to flat owners and residents' management companies alike.
What is a lease covenant, and can it be "waived"?
A covenant is simply a promise in the lease – a binding obligation to do, or not do, something. Breaking one is a breach, and a landlord can usually take steps to enforce it. However, a landlord who knows of a breach and does nothing about it, sometimes for several years, may be treated as having "waived" enforcement. The question then arises as to whether the tolerance displayed is permanent, or whether the rule can suddenly be enforced.
The case in question concerned a flat in a small block of six flats, where the freehold was owned by a company comprised of the residents themselves. The leaseholder's 1987 lease stated that she could only park in her allocated garage, although for a period of some 37 years, she had parked on the forecourt instead. The residents' company had long known about this and, through decisions at its meetings, had effectively acquiesced. Eventually, despite decades of apparent tolerance of the breach, the issue went to the Tribunal to determine whether she was in breach of the parking covenant.
Upper Tribunal Judge Elizabeth Cooke reached a nuanced conclusion based on the facts that the residents' company’s decisions at their AGMs and historical acquiescence had effectively granted the leaseholder a revocable licence, or permission, to park on the forecourt. This necessitated reasonable notice to revoke such a licence. The tenant maintained that her longstanding permission to park had been converted into a permanent easement under Section 62 of the Law of Property Act (LPA) 1925.
However, the Judge firmly rejected this as she was the original lessee from 1987 and there had been no assignment (transfer) of the lease to a new owner, and so Section 62 did not transform her informal licence into a permanent legal easement. Moreover, as the tenant had always known she was technically acting in breach of her written lease, the landlord was not permanently 'estopped' from withdrawing its period of tolerance. If a group of flat owners agree to change the parking rules at an AGM, then they must formally vary the leases under the LTA. On the other hand, the company had genuinely waived enforcement and, having done so, it could not simply enforce the rule without due warning, as reviving a suspended obligation requires a landlord to give reasonable notice that it intends to reassert its rights. Crucially, in this case, issuing legal proceedings does not count as that notice, because it assumes the right to enforce is already live and actionable. As no proper notice had been given, the leaseholder was not in breach up to the date of the decision.
So is it safe to continue with a long-tolerated breach of a lease?
This is the heart of the case, and the answer is that neither side should be complacent. A leaseholder who has been ‘getting away’ with a breach for years should not assume it has hardened into a permanent right, as the obligation in the lease survives and can be brought back to life.
Equally, a landlord or management company cannot treat a long-ignored covenant as though nothing had changed. Once enforcement has been waived, fairness requires a clear step in the form of reasonable written notice before the rule can regain its teeth. Simply ‘ambushing’ a resident with proceedings, without sufficient warning, will not succeed.
Implications:
For tenants, the practical message is to seek certainty rather than simply relying on informal tolerance. If your landlord or management company is happy for you to do something the lease forbids, record it properly, ideally by a formal variation or licence in writing, rather than trusting that years of being left alone have settled the matter. A breach tolerated today can be reasserted tomorrow.
For landlords and, in particular, residents' companies, the lesson is about process. You are entitled to start enforcing a rule you have let slide, although you must follow due process by giving clear, reasonable written notice that you intend to require compliance again, allow a sufficient period for adjustments in behaviour, and only then treat a continued breach as actionable.
In summary:
- Long-term tolerance of a breach alone does not permanently wipe out a lease obligation.
- A covenant survives and remains legally valid, even if it is ignored or overlooked for a period.
- Waived enforcement means that an obligation has to be resurrected through formal notice.
- Simply launching legal proceedings does not count as proper notice, meaning the tenant was not in breach up to the date of the decision.
- Relying on informal tolerance is risky, and deviations from a lease should always be secured via a formal written variation or licence.
The wider implications of this ruling are reassuringly fair. The law here is about fairness in relations between those who share a building; you cannot lull someone into a breach and then pounce, but then again, simply looking the other way is an enduring concession.
Disclaimer: This simplified summary of a UK legal case is for general information only. It is not legal advice, may omit important detail, and may not reflect later developments or appeals. Please read the full judgement and seek professional legal advice before acting.