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UKPC - SCS Claim form recieved

1356713

Comments

  • Gunner84
    Gunner84 Posts: 67 Forumite
    I am searching for some proof of this now, otherwise surely I will have to entirely dismiss Primacy of tenancy as a defence if no mention of parking is included here.

    Would my landlords own paperwork suffice to some extent? His own lease stating parking information?

    Thanks again Nosferatu.
  • Gunner84
    Gunner84 Posts: 67 Forumite
    Part 18 does not apply. Just ask them for all doucments they intend to rely upon, in the interests of narrowing the subject under dispute and to meet the overriding objectives of the CPRs

    If it is a rolling agreement, then the original agreement terms stand unless it specifies otherwise.

    When you say"own bay... being included", WHAT is it included IN if not the agreement????


    I am requesting the documents to meet CPR overriding objectives, is there any meaningful way I can deadline this? Otherwise surely they will just delay?
  • Umkomaas
    Umkomaas Posts: 41,256
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    Gunner84 wrote: »
    I am requesting the documents to meet CPR overriding objectives, is there any meaningful way I can deadline this? Otherwise surely they will just delay?

    'A response to this letter is required within x days'?
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

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  • Coupon-mad
    Coupon-mad Posts: 130,634
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    edited 7 March 2018 at 4:44PM
    otherwise surely I will have to entirely dismiss Primacy of tenancy as a defence if no mention of parking is included here.

    No you won't entirely dismiss what may well be your best defence point!

    Modern lease/tenancy agreements imply rights of way, which in turn can include parking:

    https://bmpa.zendesk.com/hc/en-us/articles/115000364509-Bulstrode-v-Lambert-CHD-1953

    https://bmpa.zendesk.com/hc/en-us/articles/214079425-Allocated-Car-Park-spaces

    http://lexisweb.co.uk/cases/2000/november/mcclymont-v-primecourt-property-management-ltd
    QUOTE
    That a right to use and access a roadway can reasonably include a right to park was accepted by the court in McClymont v. Primecourt Property Management Limited* [2000] All ER (D) 1871.

    ''On the facts, in McClymont, a grant of a right to use a private road included the right to park vehicles. The erection of gates by P restricted the available space, even for temporary parking for the owners of No 102. Accordingly that was a substantial interference with the right of way and interfered with the reasonable use of the right''.

    The flat comes with two parking passes, one guest pass and one for my own car.
    So clearly then, there is a reasonable expectation of the tenant being granted parking rights.

    Did those 'passes' come with a set of rules/regulations/warning of £100 charges? NOPE.

    Did those passes say ''further t&cs and parking charges of £100 apply, see signage in the car park which creates a contractual obligation and forms part of this permit agreement''? NOPE.

    Were you merely given the permits and told you could use those spaces? Yes...?

    Then you can argue primacy of contract, and if the tenancy agreement is silent about parking then that can be used in your favour, to prove that you were never alerted to any obligation, contract, charges, or any t&cs that could override the ostensibly 'free passes' or change/vary your agreement.
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  • Gunner84
    Gunner84 Posts: 67 Forumite
    Coupon-mad wrote: »
    No you won't entirely dismiss what may well be your best defence point!

    Modern lease/tenancy agreements imply rights of way, which in turn can include parking:

    https://bmpa.zendesk.com/hc/en-us/articles/115000364509-Bulstrode-v-Lambert-CHD-1953

    https://bmpa.zendesk.com/hc/en-us/articles/214079425-Allocated-Car-Park-spaces

    http://lexisweb.co.uk/cases/2000/november/mcclymont-v-primecourt-property-management-ltd




    So clearly then, there is a reasonable expectation of the tenant being granted parking rights.

    Did those 'passes' come with a set of rules/regulations/warning of £100 charges? NOPE.

    Did those passes say ''further t&cs and parking charges of £100 apply, see signage in the car park which creates a contractual obligation and forms part of this permit agreement''? NOPE.

    Were you merely given the permits and told you could use those spaces? Yes...?

    Then you can argue primacy of contract, and if the tenancy agreement is silent about parking then that can be used in your favour, to prove that you were never alerted to any obligation, contract, charges, or any t&cs that could override the ostensibly 'free passes' or change/vary your agreement.

    To answer these questions as best I can:

    As far as the passes coming to me with a warning. No, never. In fact to my memory they were either put in my hands by the previous tenant, or the letting agency managing the initial agreement. Then accepted for 5 years without issue.

    As for passes coming with any warning of fines, there have been some. In the form of letters to residents from property management outlining the rules of the passes.It didn't come with the tenancy contract. I have attached the letter which clearly states leasehold PROPERTIES are allocated 1 x resident and 1x visitor pass. These seem to be no uncertain terms, but I am not sure where the whole letter stands legally. It's from 2014. The property management company has changed, and insists they posted a warning requiring me to purchase new ones. I did not receive this.

    I have attached to this two documents which I am hoping someone could advise me on in terms of how the wording assists me.

    First one. Tenancy contract redacted to protect identity. Section 5.1 seems to work in my favour. Could someone elaborate if possible on how to use this most effectively in my defence. If "Drives" does not describe both the parking bays and visitor parking, then what does it refer to?

    Second. A letter that I have detailing that properties were allocated 1 of each pass. It mentions when a new permit is purchased the previous becomes invalid. But it doesn't state that the undated permits have any sort of expiry.

    34npop5.jpg
    20ax5w1.jpg

    Am I on the right track here and starting to think in the correct way? Must have spent about 30 hours on this now plus.
  • nosferatu1001
    nosferatu1001 Posts: 12,961
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    Youre thinking the right way

    A letter doesnt form a contract, nor can it vary your tenancy agreement.
  • Gunner84
    Gunner84 Posts: 67 Forumite
    Youre thinking the right way

    A letter doesnt form a contract, nor can it vary your tenancy agreement.

    Keeping in mind though this case isn't my "own space", but my visitors right to park. If the tenancy contract takes all permits out of consideration potentially, how do i then apply it to her vehicle in the visitors pass in a way that makes an effective argument?
  • Gunner84
    Gunner84 Posts: 67 Forumite
    Might be a silly question, but do I need to prepare my evidence and have reference points to it throughout my defence? Or is that all afterwards with the witness statement? I read up about it, but am trying to avoid confusion.
  • nosferatu1001
    nosferatu1001 Posts: 12,961
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    Its a silly question, because the newbies thread, post two guides you through every step. You MUST be referring to this at all points.

    Is there any mention in teh TA that the visitors spaces are in any way diffferent to the rest?
  • Gunner84
    Gunner84 Posts: 67 Forumite
    UPDATE:

    Received documents to be used as evidence following request for them from UKPC and SCS to meet overriding objectives of CPR.

    A series of contracts following each other have arrived chronologically. There are LOTS of redacted sections. Including a large one around the terms and conditions, a bullet point adhering to the requirements of the Property Management company (this is who the contract is with) and the previous property management. I cannot find anything about the landowners amongst this. Only lots of redactions, one current contract and one old and seemingly irrelevant one.

    Should I send a response? I feel like they might be sitting on a contract that links to the landowner. There is still a lack of a contract between the property management and the landowner here. I don't want to get blindsided down the line.

    Aside from that, all their evidence seems to consist of just all the notice to keepers, which are awful frankly. My photos of the area are far more detailed. The sign which they have watermarked with "Proof", also slightly differs from the ones on the land. I have pictures, however. Pictures that match up with their own.
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