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  • FIRST POST
    • Daniel san
    • By Daniel san 13th Jul 14, 4:27 PM
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    Daniel san
    New parking regulations at home...
    • #1
    • 13th Jul 14, 4:27 PM
    New parking regulations at home... 13th Jul 14 at 4:27 PM
    Hi all, I've been reading through threads for a few days now, including the "newbies" and guides - all great info and very much appreciated.

    I'm always very careful to check notices when out and about and parking up, so have avoided any charges so far, but something happened a few weeks ago which has annoyed me, although I must stress it only comes into force next week, I'm looking for a bit of specific guidance if you would be so kind please

    From posts I've read, I gather the following info will help you to help me.
    I am in England
    I am over 18
    The vehicle is not a lease car

    I live in an apartment block, with a leasehold purchase, and have done so since it was newly built in 2007. I am allocated a single parking bay as part of my lease. Until these notices were put in place recently, there has been no parking enforcement in place in any way, just a gate to the car park, opened by a remote fob. This new parking situation has been initiated by the managing agents for the apartments, but not something I've been asked to agree to.

    A few weeks ago, I came home to find the following notice on display in various locations around the car park (edit: oh, I can't post an image as I'm a new member )


    I've read on here that I should ignore any screen ticket, wait 28 days, I should get a NTK within 56 days.

    My question really is, given the above information on my specific scenario, does any of the advice I have read on here change, should I happen get a ticket on my windscreen please?

    I really don't want this round sticker on my windscreen....I'm happy the tax disc is finally going bye bye in October, but now I'll have to have this NCS Parking sticker/advert on my car instead anyway!

    I thank you for your time and help in advance.

    Regards
    Dan
Page 16
    • safarmuk
    • By safarmuk 4th Oct 17, 3:26 PM
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    safarmuk
    Dan - can you PM me your lease please? I want to compare it to one I am looking at myself (happy to share two ways if that is good for you) and reference it to LOC123's points above.

    LOC123 - would you be available to cast a cursory glance over the lease I mention above? I think it is potentially very similar to Dan's but I would like a second opinion. The situation with this lease I mention is coming to a head very quickly.
    • Loadsofchildren123
    • By Loadsofchildren123 4th Oct 17, 3:29 PM
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    Loadsofchildren123
    I haven't spent hours reading it, but unless I am missing something... my post #296

    Sorry, just re-reading the lease given your question above - clause 5.4 DOES allow new regulations "in the interests of good estate management", and the right specifically includes new regs in relation to the parking spaces. It says that such new regs shouldn't conflict with the lease (but the lease specifies that the QE covenant only applies to the flat, not the parking space).


    So it's arguable that they can introduce parking regs.


    BUT as per hairray's thread advice, what they can't do is impose on you a contractual relationship with a third party or the obligation to pay a charge for failing to comply. As the regulations are a matter between you and the landowner, the PPC can only act as landowner's agent, and so I can't see how it's entitled to bring proceedings in its own right.


    Plus it's unclear how such new regs are to be introduced in order to be effective - eg in writing.


    I'm unclear what you're saying about communal parking. You have no specific rights about that in your lease, other than vague rights to do things like pass over "communal areas".


    I suppose there's an argument that if you have no rights to park in the communal areas then you're trespassing. But the PPC will say it's authorised to offer a contract to park there and it did offer a contract (presuming its signs were up) and you accepted the contract. Freeholder will say that 5.4 applies and it was entitled to impose the requirement for a permit. Because it's a communal area you don't have the argument that you had a right to quiet enjoyment or exclusive rights to that spot which were breached. You do have these arguments/protections if you were parked in your particular spot (64). The only argument you really have, aside from that these types of Regulations are not permitted under 5.4 (weak), is that nowhere in the lease does the landowner have the right to impose on you a contractual relationship with a third party.
    • safarmuk
    • By safarmuk 4th Oct 17, 3:34 PM
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    safarmuk
    1. Gives you exclusive rights to park in a specific space (but this space is not part of the "demised property" - so in other words you don't own the leasehold title to it, but have exclusive rights to it).
    This is common, a lot of leases I have seen now outline the demised premises as the flat but your allocated parking space is a Particular (e.g. an explicit item in the lease) and demised rights to the "exclusive use of" are granted. Often demised rights are often granted to the use of Visitors Bays and/or common areas.
    @Dan - does your lease mentioned "demised rights" anywhere around your allocated parking bay clause?

    3. It does NOT provide for any new "regulations" to be introduced. The existing regulations are irrelevant because they don't require any permits to be displayed.
    This is the bit I am less clear on, LOC123 would you be able to elaborate on Dan's lease here? Is it his lease just lays out regulations but does not have a clause saying the MA can implement new ER's from time to time for the benefit <blah><blah> etc. and that none of the existing regulations relate to parking?

    and you also argue that even if the new regs include parking permits, there's nothing in the lease that allows the freeholder/its MA/MC to make you a party to a contract with a third party pursuant to which charges separate to the ground rent/service charge can be levied.
    This is fundamental and in my opinion the massive flaw here. If the lease does not allow the MA to increase or introduce charges then the whole PPC scam is blown out of the water. They can send as many irritating letters as they want but a court claim is doomed to failure.

    You can argue that your right to park is unfettered by any regulation to display a permit (the only relevant regulations say things like that you must only park a private vehicle on it under 3 tonnes etc etc) and the lease gives nobody any right to change that.
    Every lease mentions the 3 tonne restriction, it's to stop commercial vehicles and lorries parking there. This would be an existing parking regulation.
    Last edited by safarmuk; 04-10-2017 at 3:37 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 4th Oct 17, 3:38 PM
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    Loadsofchildren123
    I believe "9 Third Parties" on Page 13 means that the PPC has no rights to enforce any term within the contract?


    That means the PPC can't try to enforce any terms of the lease - so I think this means that they can't claim that the requirement for a permit is part of your lease, being a new "Regulation" that has been lawfully introduced. But they can sue you in their own right - eg by proving that you entered into a contract with them.


    It's odd that the landowner provides communal parking but the lease is completely silent on their use. You'd have to look at what was implied - the most obvious implied term is that they are for visitors, but there's nothing limiting them to visitors and so it's arguable they are for all residents, on a first come first served basis (although this conflicts with, as you say, clause 21 of Schedule 3 - but against this you'd say you were parking in a marked bay and therefore not causing an obstruction at all). The lease was obviously drafted by person who didn't know there was going to be communal parking. Where a contract is silent on important things the court has the power to impute a term or terms to give it efficacy.


    Not sure a judge in a small claim is going to want to get bogged down with this and may just declare that landowner is entitled to introduce these new regs, and it's then down to you to argue that these cannot include imposing a contract with a third party, and in fact clause 9 on p12 specifically prevents this.
    • Loadsofchildren123
    • By Loadsofchildren123 4th Oct 17, 3:42 PM
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    Loadsofchildren123
    @safarmuk - my first post about the lease was wrong, I read it too quickly. There is a clause allowing new regulations, which is what I'd have expected to see.
    Danielsan's lease is much shorter than hairray's
    pm me your email
    You are right, the crux of this is that even if they are entitled to introduce new regs of this nature, that cannot include the right to impose a new contractual relationship with a 3rd party in respect of pre-existing rights, including an obligation to pay charges for any breaches which are outside of the service charge/ground rent provisions.
    • safarmuk
    • By safarmuk 4th Oct 17, 4:00 PM
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    safarmuk
    @safarmuk - my first post about the lease was wrong, I read it too quickly. There is a clause allowing new regulations, which is what I'd have expected to see.
    OK, thought as much but it must have the caveat about "for the benefit ..." etc. This is a point to argue, it seems it is of no benefit whatsoever to Dan - indeed what consideration does this ER bring to someone who has an allocated space? Zero!

    pm me your email
    Done, thanks.

    You are right, the crux of this is that even if they are entitled to introduce new regs of this nature, that cannot include the right to impose a new contractual relationship with a 3rd party in respect of pre-existing rights, including an obligation to pay charges for any breaches which are outside of the service charge/ground rent provisions.
    Surely this is the killer blow to any residential PPC claim then especially once you establish Primacy of Contract (e.g. the lease is the prime and first contract)?

    It's odd that the landowner provides communal parking but the lease is completely silent on their use. You'd have to look at what was implied - the most obvious implied term is that they are for visitors,
    Strange lease. Most explicitly reference visitors bays as for use by visitors on a first come first served basis. That however does not stop residents using them as their second and third allocated bays which I have seen cause much irritation.
    • Daniel san
    • By Daniel san 4th Oct 17, 4:01 PM
    • 187 Posts
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    Daniel san
    Thank you.

    5.4 says "The Lessor" may impose - but it's not the Lessor that is doing anything, it's the MA with RTM Co agreement. (Basically this whole scheme came about because at the time the sole director of the RTM Co was blocked in her space one day, complained to the MA and of course they jumped for joy and said why don't we bring in a PPC, which happened to be a sister company to the MA...)

    The PPC contract is with the MA, not the land owner. Part of that contract requires the PPC to operate under the IPC CoP, which of course requires a contract with the land owner. The land owner says it's nothing to do with them, as there is a RTM Co involved. I have a copy of that contract on dropbox if it helps?

    If I'm trespassing, then would it not be the case that only the land owner can take action for that? As per BEAVIS? I think it was Lord Mance at 97.

    Copy of car park sign: https://www.dropbox.com/s/dxdtdlbuyyoqqvn/parking-sign.jpg?dl=0

    I think an additional argument I have with this, now the 3rd PPC, is that neither the PPC nor the MA wrote to me to say a new PPC was being introduced, and I am aware other residents received such a letter, along with a permit (my space was meant to be exempt from the scheme, but this didn't stop the PPC's most of the time).

    I'm asking btw, not arguing, just in case anything comes across that way Just looking for my best angle, and to see if this changes my letter I need to send Gladstones.

    Thank you again.
    • Daniel san
    • By Daniel san 4th Oct 17, 4:19 PM
    • 187 Posts
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    Daniel san
    To clarify with regards visitor bays, there are none marked at all. There are 100 apartments and 100 spaces. The communal areas that I and others used for parking were simply side areas, unmarked, that caused no obstruction to anyone.
    • Loadsofchildren123
    • By Loadsofchildren123 5th Oct 17, 9:07 AM
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    Loadsofchildren123
    But the MA is acting as the landowner's agent so they have brought in the PPC on the landowner's behalf and the requirement to display a permit is a new "regulation".


    The question is how this regulation was brought in. Were you notified? How? When? Even if 5.4 permits such new regulations, if it hasn't been properly introduced then you could argue it's invalid.


    You have an obligation not to block/impede communal areas. Even if you weren't in anyone's way in parking, you weren't parked in your space and you were technically in breach of your lease obligations. Questionable whether you're in breach of contract (the lease) or trespassing. Yes, trespass actions can only be brought by the landowner.


    What does the signage say?
    • Loadsofchildren123
    • By Loadsofchildren123 5th Oct 17, 9:08 AM
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    Loadsofchildren123
    And of course you have that clause about 3rd parties which means that this is not a breach that the PPC can enforce, but only the landowner.
    • Daniel san
    • By Daniel san 5th Oct 17, 1:27 PM
    • 187 Posts
    • 192 Thanks
    Daniel san
    Thank you LOC.

    Well this is the first time anyone here has advised that that PPC / MA contract is any way valid as an authority of the land owner.I'm not saying you're wrong of course, but it puts a different spin on information received previously.

    Copy of car park signage: https://www.dropbox.com/s/dxdtdlbuyyoqqvn/parking-sign.jpg?dl=0

    This is now the 3rd PPC, as they seem to come and go every year when their contract is up. The first PPC sent letters which quoted the lease clauses and replaced the wording with new wording, to include a requirement to display a permit. The second PPC did nothing other than issue permits. This now third PPC or the MA, I'm unsure which, apparently sent a letter with permit enclosed, but I was not sent anything at all. I only know of its existence through speaking with another resident.

    I understand regards the communal area/blocking etc. I only left the vehicle there to gain a PCN from my space and outside the space, to then go via POPLA and show it was unenforceable, with the expectation that the MA would then see sense. It started out as a logical idea, but the MA isn't budging no matter what is thrown at them.

    The four PCN's they are now claiming, were all issued within 8 days, to the vehicle which had been parked there before this PPC were engaged at the site, and the vehicle didn't come and go during those 8 days, it didn't move. After receiving the NTK letters, and updating this thread, I moved it so as not to continue collecting more.
    Last edited by Daniel san; 05-10-2017 at 1:36 PM.
    • safarmuk
    • By safarmuk 5th Oct 17, 2:02 PM
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    safarmuk
    And of course you have that clause about 3rd parties which means that this is not a breach that the PPC can enforce, but only the landowner.
    And the landowner is neither the RTM Company, nor the Management Agent, nor the PPC.

    It is Theowal LTD, represented by Estates & Management, a standard set up for many blocks of flats across the country (except the land owning company will be different - but with the same directors). I am 99.9% certain that Theowal LTD don't have a contract with the PPC or even know they are operating there ...

    I also doubt that Theowal LTD have ceded any land owning rights to the RTM company either. Earlier in this thread Dan posted the incorporation document from the RTM company ... we were going to look at that but got waylaid by the LBC coming in.
    Last edited by safarmuk; 05-10-2017 at 2:05 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 5th Oct 17, 2:15 PM
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    Loadsofchildren123
    The landowner cannot introduce new regulations under clause 5.4 without giving any sort of notification of them.


    My problem here is that you weren't in your space. If you had been you've got a solid defence that the new regs were not validly introduced, and are themselves invalid because they seek to impose on you a contractual arrangement with, and liability to, a 3rd party.


    I'm just unsure now because you were parked in a communal area and not in any sort of marked communal bay so technically in breach of your obligation not to use the common areas for such purposes.


    Has the PPC produced a copy of its contract with the landowner? Or with the RTM, with evidence of the RTM's right to contract rights to it relating to the land?


    It is their burden of proof, not yours.
    • buglawton
    • By buglawton 5th Oct 17, 2:26 PM
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    buglawton
    Some flats that I know have had this type of 3rd party enforcement forever. And it does help the residents as there are opportunists (not all have parking allocations) who will park in corners that obstruct emergency vehicles, park in other peoples allocated spaces, and even dump cars.
    You win some you lose some.
    • safarmuk
    • By safarmuk 5th Oct 17, 2:41 PM
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    safarmuk
    Your own space tickets are highly likely to be won in court.

    My problem here is that you weren't in your space. If you had been you've got a solid defence that the new regs were not validly introduced, and are themselves invalid because they seek to impose on you a contractual arrangement with, and liability to, a 3rd party.
    From your thread, you have always also parked outside your bay and have never received a complaint about it. However as LOC123 says this is not as strong a case for you as your allocated bay tickets.

    Some flats that I know have had this type of 3rd party enforcement forever. And it does help the residents as there are opportunists (not all have parking allocations) who will park in corners that obstruct emergency vehicles, park in other peoples allocated spaces, and even dump cars.
    I know of flats where these schemes are used by residents to nab visitors spaces as their own personal allocated space for their 2nd and 3rd cars ... I also know of blocks of flats where the PPCs ticket residents in their own allocated bays and do not listen to reason ...

    park in other peoples allocated spaces, and even dump cars.
    The simplest solution to this is to install a fold down lockable bollard on your allocated parking space with a combination pad lock. I know someone who did this for about £50 (less than a parking ticket). He's never had a problem since.
    • Daniel san
    • By Daniel san 5th Oct 17, 2:51 PM
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    Daniel san
    Has the PPC produced a copy of its contract with the landowner? Or with the RTM, with evidence of the RTM's right to contract rights to it relating to the land?

    It is their burden of proof, not yours.
    Originally posted by Loadsofchildren123
    The PPC hasn't produced anything at all so far. I still need to send the reply to LBC to them, and then see if they bother replying for starters, and then what they provide. I got a copy of the contract from the MA, I pm'd you the dropbox link as I cannot redact it from this pc (only Adobe reader, not acrobat X). The contract is between the MA and PPC only, and is dated 22nd March - my PCN's are 23,24,28 and 31st March.
    • safarmuk
    • By safarmuk 5th Oct 17, 2:56 PM
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    safarmuk
    The contract is between the MA and PPC only, and is dated 22nd March - my PCN's are 23,24,28 and 31st March.
    So its not between the landowner and the PPC. You need to challenge the locus standi then surely?
    • Loadsofchildren123
    • By Loadsofchildren123 5th Oct 17, 3:10 PM
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    Loadsofchildren123
    1. The contract is 24 hours before your first ticket: did they have signs up?


    2. A term of the contract is that the PPC must adhere to the IPC CoP. Did it?


    3. Did you receive any sort of notification from the landowner or the management company of a) any PPC prior to this one and its t&cs? and b) the appointment of THIS PPC and its t&cs?
    • Daniel san
    • By Daniel san 5th Oct 17, 3:30 PM
    • 187 Posts
    • 192 Thanks
    Daniel san
    So its not between the landowner and the PPC. You need to challenge the locus standi then surely?
    Originally posted by safarmuk
    That's been my understanding until LOC's post which indicates the MA as the land owners agent, would have authority to do this.
    • Daniel san
    • By Daniel san 5th Oct 17, 3:39 PM
    • 187 Posts
    • 192 Thanks
    Daniel san
    1. The contract is 24 hours before your first ticket: did they have signs up?


    2. A term of the contract is that the PPC must adhere to the IPC CoP. Did it?


    3. Did you receive any sort of notification from the landowner or the management company of a) any PPC prior to this one and its t&cs? and b) the appointment of THIS PPC and its t&cs?
    Originally posted by Loadsofchildren123
    1. Yes (but my vehicle was already parked there before they put signs up)

    2. No contract with land owner, only MA... IPC CoP B1.1 requires contract with land owner

    3. First PPC sent this, attempting to amend the terms of the lease.
    https://www.dropbox.com/s/s3hfkl6jv4oecvp/ucs-parking-letter.jpg?dl=0
    Latest PPC sent me nothing. I am aware through speaking to another resident at a later time, that a letter existed and enclosed a permit, but this letter was never sent/received by me. Given that I've previously opted out of the scheme and my parking space was supposed to be exempt (as stated by the MA to me), I can only assume this letter was not sent to me, rather than Mr Postman lost it.
    The land owner has not communicated anything to me, whatsoever.

    Thank you all!
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