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  • FIRST POST
    • RA_annoyed
    • By RA_annoyed 14th Sep 17, 4:05 PM
    • 5Posts
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    RA_annoyed
    PPC on Residential Site - Fightback against the MA
    • #1
    • 14th Sep 17, 4:05 PM
    PPC on Residential Site - Fightback against the MA 14th Sep 17 at 4:05 PM
    Hi All,

    Sorry for the new post but after lurking on here for a bit reading lots of threads, we (myself and some other Residents) are looking for some specific viewpoints on our situation.

    To cut a long story short we have a beligerent MA who has brought a PPC on site without any consultation and refuses to be reasonable about it. The net result is that some residents have got tickets, some paid becuase they knew no better (we are helping with this), some have followed the advice here (IPC member PPC) and others have complained to the MA and the land owner.

    Now we are at the point where we want to pursue the legal avenues to get the MA and land owner to act reasonably as all other reasonable avenues have proven fruitless. We have seen the LBC written for user "Hairray" but we didn't see his original lease posted there (unless we missed it) so we don't know if all the points in those letters are relevant for us, hence the new thread to ask for specific questions basis the expert on here about our lease.

    I can post a redacted copy up here if needs be but in summary for now our lease has:

    Particulars:
    This section refers to the following particulars:
    the Demised Premises (basically the flat)
    the Parking Space (... edged red on the plan and numbered with the same plot number as the Demised Premises)

    Meaning of Words:
    "the Parking Space" - means that part of the Development referred to <in the Particulars above>
    "the Parking Spaces" - means the car parking spaces shown on the plan (basically all other spaces)

    The DEMISE section is specifically for the Demised Premises and all the rights set out in schedule X.

    Schedule X contains "demised rights" (extracted regarding parking):
    - The right for the Lessee and the tentant or occupiers of the Demised Premises ... to go and re-pass at all times and for all purposes of access to and egress from the Demised Premises only with or without vehicle (as appropriate) over and along the New Roads and Accessways ...
    - The right to exclusive use of the "Parking Space" for the purpose of parking a private motor vehicle not exceeding three tonnes gross laden weight
    - The right to use in common with all others entitled to a like right on a first come first served basis any parking spaces marked "VP" on the plan for the temporary parking of visitors private motor vehicles not exceeding three tonnes gross laden weight

    Later on we also have:
    - That the lessee paying the rent ... shall peaceably hold and enjoy the Demised Premises and the rights hereby granted during the said term without any lawful interruption from or by the Lessor or the Management Company or any person lawfully claiming under or in trust for either of them

    Of course there is the standard Estate Regulation bumpf too. Its meaning is ironically:
    ... any rule or regulation made by the Management Company from time to time for the benefit of use and enjoyment of the Development.

    and there is the clause that allows the Management Company to have the power to make and at any time vary such Estate Regulations as it may reasonably think fit for the preservation of the amenities of the Development or for the general convenience ...

    --------------------------------------------------------------------------------------------------------------------
    Suffice to say, the scheme is flawed as we all said it would be and it hasn't solved any problems. In fact it has created - as we said it would - more problems and more animosity. The only winner out of this appears to be the PPC.

    As such we need to take more stern action now and we would like to hear views as to whether - as we believe - there is a clear breach of our leases here and if so what kind of damages should we look for in our LBC to the land owner and Management Company ... any help greatly appreciated.
Page 1
    • Timothea
    • By Timothea 14th Sep 17, 5:20 PM
    • 147 Posts
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    Timothea
    • #2
    • 14th Sep 17, 5:20 PM
    • #2
    • 14th Sep 17, 5:20 PM
    It will all depend on the lease, of course. However, from the information you have provided, it appears that the lessees have primacy of contract to "hold and enjoy the Demised Premises and the rights hereby granted during the said term without any lawful interruption from or by the Lessor or the Management Company or any person lawfully claiming under or in trust for either of them."

    You should realise that the management company may be in receipt of payments from the PPC for the right to "manage" parking on the property. In many cases, "manage" means to make lots of money from residents and their visitors. In other words, the management company and the PPC may be in this together.

    The way to fight this is to explain to the management company in clear legal terms why these parking charges are invalid and to threaten the PPC and the management company with legal action to recover all moneys paid together with damages for trespass and data protection breaches. The management company is jointly and severally liable for the actions of its agent (the PPC) and when it realises that it could be liable for refunding all charges and thousands of pounds in damages, it may back down.

    A solicitor's letter is most effective, although most solicitors are unfamiliar with private parking or data protection. However, the main arguments are around the lease, so a property solicitor should be able to draft something quickly and inexpensively. This can work if residents come together to share the costs, and the solicitor's fees will normally be recoverable if the management company backs down.

    Alternatively, you could go down the do-it-yourself route. This will take a significant amount of time and effort, but there are some solicitors on this forum (not me) who may be able to provide advice.

    Do check whether you or any other residents have legal insurance that covers property matters. This is often provided as an option for household insurance or through membership schemes (e.g. The Consumers' Association).
    Last edited by Timothea; 14-09-2017 at 9:01 PM.
    • RA_annoyed
    • By RA_annoyed 14th Sep 17, 5:36 PM
    • 5 Posts
    • 1 Thanks
    RA_annoyed
    • #3
    • 14th Sep 17, 5:36 PM
    • #3
    • 14th Sep 17, 5:36 PM
    Thanks for the response, it's very interesting to read. We deliberately didn't put our conclusions in the above post (and won't for now) as we wanted to see what others thought without biasing the responses.

    I think if at a minimum we find most responders agree with our PoV regarding the lease position, then we will continue on the path we are treading. We are completely up for doing the leg work ourselves as we are capable and have already done a lot of research, including going through many residential parking threads here. If we additionally get some great initial advice, a few specific pointers to send us in the right direction or people to help review our first draft LBCs then even better.

    I will try and get the full redacted lease up if other posters wish to see it in its entirety before commenting.

    I can see from the many threads on here that ours is not an uncommon problem, but in most cases people see off the PPC in the SCC, in our case it would be nice to give a bloody nose back to those causing the issue at source.
    • safarmuk
    • By safarmuk 15th Sep 17, 11:49 AM
    • 613 Posts
    • 1,122 Thanks
    safarmuk
    • #4
    • 15th Sep 17, 11:49 AM
    • #4
    • 15th Sep 17, 11:49 AM
    I would be inclined to agree with Timothea, based on what you have revealed you seem to have a strong case and that the MA (Management Agent) is not within their rights to do what they have done and need to listen to you. But the lease must be read in its entirety and then all the pieces joined up to form your conclusion.

    There are solicitors on this site who may be able to help if you put up the full lease. I have been involved in a similar circumstance and I must warn you this is not easy, but extremely rewarding when you win and/or get the concessions you want.

    Do you have a Residents Group then? I am thinking you do because you use "we".

    I'll look again at your terms above later and see what I can add but hopefully others might pitch in too.
    • RA_annoyed
    • By RA_annoyed 22nd Sep 17, 3:56 PM
    • 5 Posts
    • 1 Thanks
    RA_annoyed
    • #5
    • 22nd Sep 17, 3:56 PM
    • #5
    • 22nd Sep 17, 3:56 PM
    Unashamed bump for any further advice?
    • Coupon-mad
    • By Coupon-mad 22nd Sep 17, 4:04 PM
    • 51,452 Posts
    • 65,048 Thanks
    Coupon-mad
    • #6
    • 22nd Sep 17, 4:04 PM
    • #6
    • 22nd Sep 17, 4:04 PM
    The right to exclusive use of the "Parking Space" for the purpose of parking a private motor vehicle
    Good, you have primacy of contract. A right. And no parking charges stated.

    Have you complained to your MP about this scam?

    It's high time they all learned about what this rotten industry is doing to people in their own homes; at least one MP fired off a FOI request to the DVLA (maybe the courts service, I can't recall?) to find out how many of his constituents were affected at a residential site where there is a marauding PPC suing people for parking at their own homes.

    Keep up the fight and publicity and get your MP on board.
    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.

    • RA_annoyed
    • By RA_annoyed 27th Sep 17, 3:20 PM
    • 5 Posts
    • 1 Thanks
    RA_annoyed
    • #7
    • 27th Sep 17, 3:20 PM
    • #7
    • 27th Sep 17, 3:20 PM
    Hi Coupon-Mad - thanks for the reply.

    Good, you have primacy of contract. A right. And no parking charges stated.
    This is what we think too. So do you think a breach of the lease has occurred?

    at least one MP fired off a FOI request to the DVLA (maybe the courts service, I can't recall?) to find out how many of his constituents were affected at a residential site where there is a marauding PPC suing people for parking at their own homes.
    How did the MP do this, by asking for the number of DVLA searches or Court Cases where the service address was that of the estate where the PPC was operating?

    We are keeping up the fight and bumping this again for any more good advice (especially opinions on the BoL question and what remedies could be sought).
    • Coupon-mad
    • By Coupon-mad 27th Sep 17, 10:38 PM
    • 51,452 Posts
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    Coupon-mad
    • #8
    • 27th Sep 17, 10:38 PM
    • #8
    • 27th Sep 17, 10:38 PM
    I don't see it as a breach of the lease because they will say they've not attempted to vary the lease, and that their 'contract' stands alone.

    But you would argue they've offered nothing of value that could represent consideration (as a primary element of any contractual agreement) because you had the 'exclusive' right to park already. And in fact, their harassing demands sent to you for simply parking at your own home location is unwarranted interference with your peaceful enjoyment, and distressing in the extreme, etc.

    How did the MP do this, by asking for the number of DVLA searches or Court Cases where the service address was that of the estate where the PPC was operating?
    I must admit I only read it once somewhere and can't recall the details.
    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.

    • RA_annoyed
    • By RA_annoyed 28th Sep 17, 9:41 AM
    • 5 Posts
    • 1 Thanks
    RA_annoyed
    • #9
    • 28th Sep 17, 9:41 AM
    • #9
    • 28th Sep 17, 9:41 AM
    I don't see it as a breach of the lease because they will say they've not attempted to vary the lease, and that their 'contract' stands alone.
    Hmmm, well if the lease says one thing and the agents of the freeholder are doing something else, then surely the agents are causing a breach of the lease on behalf of the freeholder.

    I don't see how the freeholder can wash their hands of their agents behaviour (once they have been made aware) and therefore we believe unless the freeholder acts they are liable ...

    Agree entirely with your second point. Absolutely no consideration is flowing from the car parking company.
    • nosferatu1001
    • By nosferatu1001 28th Sep 17, 10:08 AM
    • 823 Posts
    • 946 Thanks
    nosferatu1001
    Interference with the lease, by encroaching on peaceful enjoyment, is a breach of the lease by the MA via their agents. If the MA are acting on behalf of the freeholder, the free holder is also breaching the lease.
    • safarmuk
    • By safarmuk 28th Sep 17, 11:02 AM
    • 613 Posts
    • 1,122 Thanks
    safarmuk
    Interference with the lease, by encroaching on peaceful enjoyment, is a breach of the lease by the MA via their agents. If the MA are acting on behalf of the freeholder, the free holder is also breaching the lease.
    Agree, I have been looking into this a bit, time permitting, and on other threads there is also useful information from LOC123, but yes, if the situation is the PPC is engaged by the MA and the MA is instructed by the FH then ultimately anything the PPC does wrong - via the law of agency (can't remember the exact words) - flows back to the FH especially if it is a breach of lease. That is my understanding.

    The key I think you are looking for is to understand what is the actual "breach of lease". Is it a breach of your leasehold rights (e.g. the specific terms mentioned above) or is it a breach of your quiet enjoyment and interference with such (e.g. by way of interfering with the leasehold right specific terms mentioned above).
    Last edited by safarmuk; 28-09-2017 at 11:04 AM.
    • Loadsofchildren123
    • By Loadsofchildren123 28th Sep 17, 11:44 AM
    • 1,588 Posts
    • 2,695 Thanks
    Loadsofchildren123
    In Hairray's case the MC was party to a contract between lessee, freeholder and the MC in which MC was bound to comply with the covenants, making MC liable for breaches and not just the freeholder.


    The trouble is the clause allowing new "regulations". In hairray's case these were undefined. So you have to then go to the existing regulations to see if there is any information pointing towards what sort of things the new regulations can cover. In his case there were 2 sets of regulations - estate regulations set by the MC and block regulations set by the freeholder. The estate regulations were a list of things you couldn't do - ride horses, walk dogs off lead, play ball games, things like that - and a list of things the MC had to do, like keeping common parts clear. The block regulations concerned the actual use of the flats. From reading these I thought that the clause allowing new regulations to be set was quite restrictive, because all the original regulations related to things you couldn't do, not things you must do.


    Also, the regulations have to be for "for the benefit of use and enjoyment of the Development" and "for the preservation of the amenities of the Development or for the general convenience ..."



    So you would argue that the imposition of a permit system and fines, with no power to cancel these for genuine residents, is not a regulation that falls within these definitions.


    The breach of the quiet enjoyment covenant is a separate point - even if permitted to introduce such regulations, if they are a breach of the quiet enjoyment covenant then I'd say that covenant takes precedence.


    A third issue is even if the parking regs come within the definition, the lease does not allow for any charges to be levied, save for ground rent/service charges. The charge they are chasing is not within either.


    A fourth issue is even if they come within the definition, the lease does not allow the freeholder, or MC acting on its behalf, to impose a contractual relationship between leaseholders and a third party (the PPC).


    A fifth issue is derogation from grant - they can't interfere with rights already granted to you.


    A sixth issue - it's a variation of the lease and must be done in writing and I think by way of formal variation.


    Copper Quarter in Swansea is an example of where a PPC was brought in by Barratts which then targeted residents - after a series of complaints and residents meetings, Barratts was pressurised into ending the contract with Millennium. Then there is DJ Bingo - one DJ found that the parking was a new regulation that came within the definitions (he actually said that the clause allowed the freeholder/MC to do whatever it liked), another found that it wasn't.


    Where you have quite a few people affected by this problem, I would suggest everyone putting some money into a pot and getting a written Opinion from Counsel about what new regulations might be allowed under the lease, whether that includes parking restrictions, whether that clause allows the freeholder to impose a contractual relationship with a 3rd party who can then sue under that contract, whether the covenant of quiet enjoyment trumps new regulations, whether new regulations can only be imposed if in writing and/or by way of a formal variation of the lease, and what remedies leaseholders are entitled to pursue against the MC/Freeholder/PPC. You can then all rely on it in pressurising the MC to get rid of the PPC and in any proceedings that may be brought against any of you.
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