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  • FIRST POST
    • LiamSwindon
    • By LiamSwindon 18th May 17, 6:35 PM
    • 8Posts
    • 2Thanks
    LiamSwindon
    Resident Permit
    • #1
    • 18th May 17, 6:35 PM
    Resident Permit 18th May 17 at 6:35 PM
    Hello,

    I desperately need help as I'm getting angrier and angrier at the parking company and feel like common sense has gone out of the window.

    I received a parking charge notice for not having my residents vehicle pass displayed in the window. I own the space as it comes with my flat. A few weeks after moving in we were told that a new parking system is in place and we have to display passes.

    I forgot on an occasion to display the pass. It is not stuck in my windscreen permanently due to:

    1) it has postcode and that causes security issues for me
    2) myself and my partner share the space (we can pay another £10 to buy another)

    I paid a lot of money for the flat and space so did not want to buy another pass.

    They sent me a letter after requesting my details from the DVLA. I tried to appeal to them but stupidly got one letter wrong from my number plate so they said a charge wasn't on record. When I eventually realised my mistake they said they would not communicate with me unless I am the driver or registered keeper. My original email said that I wasn't the driver or keeper but as I wanted to communicate and I wanted the matter resolved I said that I was. (I wish I read these forums first!)

    I sent them a picture of my vehicle pass next to my number plate as proof that it is my space. They said that it states on the signs showing passes retrospectively will not be allowed. They say that my fine still stands at £60.

    I phoned up to discuss this with a person. She wouldn't put me through to a manager when she said there was nothing she can do and then she hung up on me. My argument is that they have lost no money as it's my vehicle that would park there.

    I appealed to the IAS who said I have to pay as I've breached a 'contract'. This contract has been imposed on me as what other option is there.

    I spoke to the freeholder and management company who both say that the scheme is in place to fight 'historic parking issues'. I have argued that me parking in my own space is not an historic parking issue. It's not even an issue.

    The latest is that the management company is saying that it wouldn't be manageable to have a rule in place that sending proof of a vehicle pass is ok retrospectively.

    All of those I have spoken to say there is nothing that can be done and say I should pay. The fine is now at £100. They threaten court action and I am happy to argue my case there in the vain hope that there are people left in this world with an ounce of common sense. I want to make sure that I would win and not be left with a charge that is even worse than £100 to park in my own space.

    I've realised I've made many mistakes along the way and am looking for advice.

    The lease I have signed when I bought the place does not specifically mention the particulars of a parking scheme but says that I would have to abide by any parking regulations the management company set out (or words to that effect).

    Do I pay and stop being stubborn or do I take them on and fight for the right of every resident to not be treated like a cash cow.

    The parking company will not respond to my emails now and I'm pretty sure the management company are at the end of their tether with me and will soon refuse to talk.

    Please can someone with more experience than me advise what to do?

    Thanks in advance.

    Liam
Page 2
    • The Deep
    • By The Deep 26th May 17, 7:44 AM
    • 7,382 Posts
    • 6,425 Thanks
    The Deep
    You say in your OP that you own the parking space, but the lease says that it is allocated. If your arguments with Dismissive Lady are based on ownership of the land, you might wish to re-consider suing her.

    However, the wording you have quoted re parking makes no mention of a permit being required to park there so yours remains the upper hand, so keep up the pressure. Can you raise this at the AGM?.
    Last edited by The Deep; 26-05-2017 at 7:50 AM.
    You never know how far you can go until you go too far.
    • LiamSwindon
    • By LiamSwindon 29th May 17, 9:25 AM
    • 8 Posts
    • 2 Thanks
    LiamSwindon
    Sorry what does LBA stand for? Is it the same as LBC?

    My neighbour has given me a copy of his defence as he is in roughly the same situation. When I get a moment I'll copy and paste onto here.

    Cheers
    • Fruitcake
    • By Fruitcake 29th May 17, 9:29 AM
    • 40,477 Posts
    • 80,859 Thanks
    Fruitcake
    Sorry what does LBA stand for? Is it the same as LBC?

    My neighbour has given me a copy of his defence as he is in roughly the same situation. When I get a moment I'll copy and paste onto here.

    Cheers
    Originally posted by LiamSwindon
    A = Action, C = Court, CC = County Court, CCC = County Court Claim so yes it's the same.

    Make sure the experts here get to look at your neighbour's defence before he/she submits it.
    They would do well to start their own thread here.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • safarmuk
    • By safarmuk 30th May 17, 12:52 PM
    • 613 Posts
    • 1,122 Thanks
    safarmuk
    'The right to the use and enjoyment of the allocated parking space for the purpose of parking a private motor vehicle no more than three tonnes provided that the lessor may at any time or times by notice in writing to the lessee allocate a different parking space and/or may suspend the lessors for such time as is reasonable in the circumstances the lessees right to use the parking space if works affecting it needs to be carried out.'
    So its not a demised space but you have the right to use whatever allocated bay the freeholder allocates to you.

    Is their anything else in the lease with regard to estate regulations and/or any definitions of this term?
    • Coupon-mad
    • By Coupon-mad 30th May 17, 1:39 PM
    • 51,538 Posts
    • 65,145 Thanks
    Coupon-mad
    Sorry what does LBA stand for? Is it the same as LBC?
    Originally posted by LiamSwindon
    Have you now read hairray's thread and seen the Letter before Action (or Claim) LBA or LBC written by LoadsofChildren123?

    That's the style of letter to follow. Please show us your version - and nothing watered down, this needs to be forceful and clear.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Loadsofchildren123
    • By Loadsofchildren123 30th May 17, 2:52 PM
    • 1,629 Posts
    • 2,728 Thanks
    Loadsofchildren123
    In your lease, what's the definition of:
    "Property"
    or "Demised Property"

    It may include the flat/house and the parking space, with each having a separate definition (eg "the Flat" and "the Allocated Parking Space").
    So it may be included in the property which was demised.

    If it was not, you don't own the leasehold of the space, but you have been granted rights to use it.

    We need to go a bit further back from the clause you've already mentioned to see how the rights were granted to you.

    Then we need to look at the general regulations/rules of the flats/estate and how they affect the parking, and whether there is any right to introduce new regulations (which they will argue is where they are entitled to introduce new parking regs - but even if they do, they will have no right to interfere with your quiet enjoyment nor to impose on you a contract with a 3rd party, nor any charge separate to the service charge/ground rent for any breach of any new parking regs).

    We need to know more about your lease - the letters I did on hairray's thread will give you pointers about the sorts of clauses that are relevant and what they might say.
    • safarmuk
    • By safarmuk 30th May 17, 4:51 PM
    • 613 Posts
    • 1,122 Thanks
    safarmuk
    Agree with LOC123, carefully study your lease, you can redact it, scan it, host it and post a link here if you prefer ... but what is key is to understand (as LOC123 says above) is:
    * What is your "property"
    * What land is demised to you or what demised rights you have to specific land
    * What general rights you have to use parts of communal areas

    From what I can currently guess from what you have said above is that your demised property is the flat and with that comes the general right to use a parking bay that is part of the common land as allocated by the freeholder (which they can change). However as with all leases, you need to read and understand it in its entirety and not just read particular clauses in isolation and draw a conclusion (MAs frequently do this as well).
    • Loadsofchildren123
    • By Loadsofchildren123 1st Jun 17, 1:24 PM
    • 1,629 Posts
    • 2,728 Thanks
    Loadsofchildren123
    hairray's pcn has been cancelled, I've asked him to update his thread. the LBCs to the freeholder and the Management Company did the trick.
    • Coupon-mad
    • By Coupon-mad 1st Jun 17, 1:27 PM
    • 51,538 Posts
    • 65,145 Thanks
    Coupon-mad
    Hooray!

    And that is the way forward. Attack, not defence, in many cases.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • LiamSwindon
    • By LiamSwindon 19th Jun 17, 1:26 PM
    • 8 Posts
    • 2 Thanks
    LiamSwindon
    Hi sorry I've been on holiday so not been checking this.

    "Parking Spaces" - means any or all of the parking spaces in the Development including the allocated parking space provided that the lessor may vary by increasing or decreasing and/or may move and/or reallocate the parking spaces from time to time.

    "the Lessor hereby demises with full title guarantee unto the Lessee the premises together with (so far as the Lessor can grant the same and in common with the Lessor and all other persons authorised by the Lessor or otherwise entitled thereto) the Granted rights but excluding the benefit of all interests subsisting for the benefit of the land in title number ... save insofar as they are specifically included in the granted rights"

    "Premises" the property hereby demised as described in Part 1 of Schedule 1 including for the purposes of obligation as well as grant the ceilings, floors, joists, beams, cisterns, tanks, sewers, drains, channels, pipes, wires, cables, ducts and conduits"

    The premises under schedule one for me doesn't mention my parking space but says this after saying about the flat:

    "The reserved property shall comprise (but not exclusively)

    The communal areas bin stores and other stores.

    The main entrance...doors of all such common parts together with all decorative parts ancillary thereto

    The main structural parts ...of the building and all service installations not used solely for the purpose of one Apartment.

    The Parking Spaces and any other parts of the Estate not sold or leased from time to time."

    Sorry I would upload a copy but I don't have a scanner and only have a paper copy.

    Here is a copy of the letter that I plan to send if they request me to go to court:


    1. It is admitted that the defendant is the registered keeper of the vehicle in question.

    2. The Particulars of the Claim submitted to the Defendant provide no statement to the nature of the claim and the defendant does not believe these particulars to be compliant with Civil Procedure Rules 16.4 nor Practice Direction 16 7.3-7.5 inhibiting the ability of the Defendant to provide a comprehensive and conclusive defence.

    3. The defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in a leasehold residential parking space at the home address of the Defendant.

    4. The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

    a) The claimant has failed to provide strict proof of a chain of contracts leading from the Landowner to the Claimant which say that they have the right unilaterally to remove or interfere with the overriding rights conferred in the Lease.

    b) Alternatively, even if a contract could be established, the provision requiring payment of £160.00 is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015. There have been no loss of earnings to the Claimant.

    5. The signage was inadequate to form a contract with the motorist.

    a) The signage on the site is inadequate to form a contract. It is barely legible, making it difficult to read. The claimant is put to strict proof, with dated photographs of the terms at the parking bays on the date in question.

    b) The driver did not enter into any ‘agreement on the charge’, no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract and the terms and conditions of the contract been legible, because the residents have primacy of contract at this location so any signs elsewhere on site are of no consequence.

    6. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

    a) The vehicle was parked on the land in accordance with the terms of the Lease.

    7. In the case of Saeed v Plustrade Limited (200) EWCA Civ 2011 parking restrictions and a change which caused detriment to tennis and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’.

    8. This case can be distinguished from ParkingEye v Beavis (2015) UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and interests of the landowner. Strict compliance with the BPA(CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this Material case.

    a) In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. `justification must depend on some other ‘legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question’. The true test was held to be ‘whether the impugned provision is a secondary obligation which imposes detriment on the contract-breaker out of all proportion to any legitimate interest (….) in enforcement of the primary obligation’.

    b) There can be no ‘legitimate interest’ in penalising residents or their visitors for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using allocated parking spaces.

    9. The exact question regarding terms in a lease was tested recently at Oxford County Court, Jopson v Home Guard Services, appeal case number B9GF0A9E 29/9/2016.

    a) The Jopson Appeal case is a persuasive Appeal decision, where Senior Circuit Judge Charles Harris QC found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

    10. The Defendant also relies upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14FO 16/9/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, having found that a third party parking firm cannot unilaterally alter the terms of the tenancy agreement.

    11. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS identifies over 1,000 similar poorly produced claims and the solicitor’s conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

    12. The Defendant has sought resolution via telephone and email on multiple occasions with the Claimant in the time preceding this stage. The Claimant has refused to communicate with the Defendant since issuing a demand for money.

    13. It is denied that the Claimant has authority to bring the claim. The proper Claimant (If any debt exists, which is denied) would be the Landowner.

    a) The only party to be directly affected by any vehicle parking in the space is the Defendant. As the vehicle in question relating to this Claim is owned by the Defendant no loss of earnings has taken place.

    15. I request the court strike out this claim for the reasons stated above and for sommelier reasons cited by the District Judge Cross of St Albans County Court on 20/09/2016 where a similar claim was struck out without a hearing, due to Gladstones’ template particulars for a private parking firm being ‘incoherent’, failing to comply with CPR16.4, and ‘providing no facts that could give rise to any apparent claim in law’.

    I believe the facts stated in this Defence Statement are true.
    • Coupon-mad
    • By Coupon-mad 19th Jun 17, 7:42 PM
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    • 65,145 Thanks
    Coupon-mad
    "Parking Spaces" - means any or all of the parking spaces in the Development including the allocated parking space provided that the lessor may vary by increasing or decreasing and/or may move and/or reallocate the parking spaces from time to time.

    "the Lessor hereby demises with full title guarantee unto the Lessee the premises together with (so far as the Lessor can grant the same and in common with the Lessor and all other persons authorised by the Lessor or otherwise entitled thereto) the Granted rights but excluding the benefit of all interests subsisting for the benefit of the land in title number ... save insofar as they are specifically included in the granted rights"

    "Premises" the property hereby demised as described in Part 1 of Schedule 1 including for the purposes of obligation as well as grant the ceilings, floors, joists, beams, cisterns, tanks, sewers, drains, channels, pipes, wires, cables, ducts and conduits"

    The premises under schedule one for me doesn't mention my parking space but says this after saying about the flat:

    "The reserved property shall comprise (but not exclusively)

    The communal areas bin stores and other stores.

    The main entrance...doors of all such common parts together with all decorative parts ancillary thereto

    The main structural parts ...of the building and all service installations not used solely for the purpose of one Apartment.

    The Parking Spaces and any other parts of the Estate not sold or leased from time to time."
    Clearly you have primacy of contract, with nothing agreed about permits or obligations or charges for parking.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Matthew Robert Foster
    • By Matthew Robert Foster 3rd Jul 17, 4:06 PM
    • 1 Posts
    • 0 Thanks
    Matthew Robert Foster
    Success?
    Hi Liam, how did you get on with this in the end?

    I live in the same place and am having the exact same issue as you have described for failing to show a permit for my own space. Any advice would be very welcome!
    • Quentin
    • By Quentin 3rd Jul 17, 4:37 PM
    • 33,282 Posts
    • 17,211 Thanks
    Quentin
    @ MRF


    If you have inadvertently used your real name as your forum name then get MSE to change it to something anonymous.


    The ppcs monitor this forum and can use your posts against you
    Last edited by Quentin; 04-07-2017 at 10:37 AM.
    • The Deep
    • By The Deep 3rd Jul 17, 4:51 PM
    • 7,382 Posts
    • 6,425 Thanks
    The Deep
    Quentin, as I keep saying, real names are not a huge problem in own space PCNs. It is the lease which matters, not who was driving.t
    You never know how far you can go until you go too far.
    • Quentin
    • By Quentin 4th Jul 17, 10:35 AM
    • 33,282 Posts
    • 17,211 Thanks
    Quentin
    Quentin, as I keep saying, real names are not a huge problem in own space PCNs. It is the lease which matters, not who was driving.t
    Originally posted by The Deep
    They are a huge problem - in this forum particularly. (Apart from being against the forum rules)


    The ppcs monitor here and can use posts here to the detriment of posters (ask Lamilad about this)
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