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  • FIRST POST
    • kaych
    • By kaych 29th Sep 17, 9:36 PM
    • 313Posts
    • 172Thanks
    kaych
    Parking ticket in own allocated parking space
    • #1
    • 29th Sep 17, 9:36 PM
    Parking ticket in own allocated parking space 29th Sep 17 at 9:36 PM
    Good evening all,

    Just wondered if anyone has encountered this issue. We own our flat and a car park space in the basement (leasehold). Our management company (employed by our resident association) has brought in a private company to manage the parking within the development.

    Basically I was issued a parking ticket while my car was parked in my own allocated space. The reason for the ticket was 'permit required'.

    I have always displayed a permit and our current permit runs from Jan 2016 till Jan 2018. However, a new permit was sent to us (the same parking company) in August 2017 which I didn't display it before they issued me with a ticket.

    What ground do I have to appeal this? The 'old' permit was still valid, but would the new permit replace the old one? The old and new permits look almost the same with the same company name etc.

    My management company said they couldn't help because I didn't display the new permit. But my old permit was still valid.

    I have checked the lease, it does say something along the line that we have to follow the arrangement the management company may bring in, even though there is no mention of display of a permit.

    I just find it unfair that my permit was still valid, can they just issue a new permit, catch you out and then issue you with a ticket?

    Also management company said normally the parking company would send in a photo to show how I have contravened with the rule and the reason for the ticket. But there was no photo attached with the ticket and I would think they would look silly anyway if they did take a photo of our car with a valid permit on it.

    Any advice on this would be much appreciated.
Page 2
    • kaych
    • By kaych 11th Oct 17, 6:59 PM
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    kaych
    I have unfortunately thrown the letter that came with the new permit away. When I asked the MA to cancel the ticket and the reason for issuing a new one, their response was this:

    The letter sent on 14 July had this paragraph in bold:

    The new permits will become effective in place of any existing permits in use on 1 August 2017. Please be sure, therefore, to have changed your permits over by the time this date comes around as any old permits displayed from 1 August will not be valid and the vehicle displaying them will be subject to receiving a Penalty Charge Notice.

    Therefore, the old permit was no longer valid, so the situation remains as we discussed unfortunately.


    I did ask to see the contract PPS has with the landowner (not the MA) which allow them to operate in our car park, which of course they did not provide. They did send us photos of our car with the PCN and 'old permit' in display. The photos also conveniently omitted the number of the bay (which is our flat number).
    • Redx
    • By Redx 11th Oct 17, 7:06 PM
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    Redx
    they definitely cannot issue a PENALTY charge notice, so they clearly have no idea what the legal terms are

    in your popla appeal you can put them to strict and unredacted proof of all that has been said before, which should be in their evidence pack to popla, which you will be able to view , with 7 days to comment on the pack

    the popla code lasts between 28 and 33 days , so ideally get it in by day 28 (day 30 at the latest) - better to get it in and put them to strict proof in their evidence to popla , thereby you get the chance to see them and comment on them, OR they fall on their own sword

    ypu can also comment on the lack of detail in their photos too (flat number etc)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Johnersh
    • By Johnersh 11th Oct 17, 7:24 PM
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    Johnersh
    The letter sent on 14 July had this paragraph
    That would be the letter hand delivered, but not served in accordance with the terms of the lease....
    Look up those provisions.
    • kaych
    • By kaych 11th Oct 17, 9:15 PM
    • 313 Posts
    • 172 Thanks
    kaych
    That would be the letter hand delivered, but not served in accordance with the terms of the lease....
    Look up those provisions.
    Originally posted by Johnersh
    Hmm... can't seem to find anywhere in the Lease which states the notice required to alter or implement new regulations. though the Regulations as defined in the Lease means any reasonable regulations made by the Developer from time to time for the proper management and use of the Development and/or the Reserved Property and do not unnecessarily restrict the enjoyment of the Premises So only the Developer can impose new regulations?
    • Johnersh
    • By Johnersh 11th Oct 17, 9:54 PM
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    Johnersh
    Ok. Lease terms rule the day so it's not the key point to run with. That said, I still think it's a very short period.

    All the words that start with capitals are defined terms, normally listed at the start of the document. Check in particular to see if Developer doesn't say 'or their successors'
    • Marktheshark
    • By Marktheshark 11th Oct 17, 10:04 PM
    • 5,671 Posts
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    Marktheshark
    When dealing with any management agent company always head the letter.
    Notice from employer to employee or agents therefore acting.
    Keep them constantly reminded they are employed by you to act as an agent.
    Brexit will become whatever they invent it to be.
    • kaych
    • By kaych 11th Oct 17, 10:23 PM
    • 313 Posts
    • 172 Thanks
    kaych
    Ok. Lease terms rule the day so it's not the key point to run with. That said, I still think it's a very short period.

    All the words that start with capitals are defined terms, normally listed at the start of the document. Check in particular to see if Developer doesn't say 'or their successors'
    Originally posted by Johnersh
    Definition of the Developer means the Lessor and the Company or either or both of them as the context requires or any company or companies carrying out on the business of the Lessor and/or the Company

    Lessor means includes the person or persons firm company or corporation for the time being entitled to the reversion immediately expectant on the determination of the Term and any reference to a superior lessor includes the Lessor's immediate reversioner (and any superior lessors) at any time - the beginning of the Lease also gave the name and address of the Lessor.

    Company means xx ltd whose registered office is at xxx (company registration number xxx) a company in the same group as the Lessor

    I am thinking of mainly using the following points in my appeal.
    1. Primacy of Contract (using the Terms of my Lease)
    2. Peaceful and quiet enjoyment our Premises (as defined in our Lease)
    3. Landownership (since PPS is claiming that I am using their private car park)
    4. Authority to operate (want to see the contract they have with the landowner which allow them to operate in our car park).

    Will be putting my appeal together soon, the fun times!
    Last edited by kaych; 11-10-2017 at 10:43 PM.
    • kaych
    • By kaych 12th Oct 17, 10:58 AM
    • 313 Posts
    • 172 Thanks
    kaych
    Hi all, I have drafted up my appeal, any comments would be much appreciated! I know that I have 28 days to submit my appeal to POPLA, is there any benefit in submitting the appeal ASAP or nearer to the deadline? Thanks!

    POPLA Ref. xxx
    PCN no. xxx

    A Parking Charge Notice (PCN) was affixed on our vehicle windscreen on the 8th August 2017 and A Notice of Keeper was later received by me, the registered keeper of xxx on the xx for an alleged contravention of the Conditions of Use while our vehicle was parked at the parking bay numbered xx in the basement car park in xx. The PCN was issued by Private Parking Solutions (London) Ltd, hereafter will be known as PPS ltd. I am writing to you as the registered keeper and the leaseholder of xx. I have attached my appeal below for the following reasons for your consideration.

    1) Authority to Park and Primacy of Contract
    2) Peaceful and quiet enjoyment of the Premises during the Term of the Lease
    3) Permission/consent to operate
    4) There is no evidence that PPS ltd has any proprietary interest in the land
    5) There was no consideration nor acceptance flowing from both parties and any contract with us, or the driver, is denied

    Authority to Park and Primacy of Contract
    It is denied that we were in breach of any parking conditions according to our Lease, bound by a legal agreement between us (the leaseholders) and the Lessor (the freeholders). Under Part III, Schedule 2 The granted rights and section 8, the Lease clearly states the following: “The right (to the exclusion of all others) to use the car parking space(s) shaded blue on Plan 3 and numbered or any other parking space(s) allocated by the Developer from time to time with the Development for the purpose of parking one fully taxed and licensed private motor car or motor cycle only.”

    We therefore have used our parking space in accordance to the terms of the Lease. We have an absolute entitlement to park deriving from the terms of the Lease, which cannot be fettered by any alleged parking terms. The Lease terms provide the right to park a fully taxed and licence vehicle in the relevant allocated bay, without limitation as to the ownership of vehicle and the user of the vehicle nor the requirement to display a parking permit or any agreement in the Lease of a charge for a breach of parking conditions.

    PPS ltd signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the Lease. We will rely upon the judgements on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

    2) Peaceful and quiet enjoyment of the Premises during the Term
    We refer you to point 3.1 under section 2 Interpretation of our Lease, it states that "The Lessee paying the Rent and performing and observing the covenants on the part of the Lessee herein contained shall and may peaceably and quietly hold and enjoy the Premises during the Term without any lawful interruption or disturbance from or by the Developer or any person or persons rightfully claiming under or in trust for it."

    PPS ltd has committed an act of trespass by using our allocated car park bay for business purposes without lawful authority to do so. PPS ltd has denied us the peaceful and quiet enjoyment of our Premises by operating in our parking bay illegally.

    3) Permission/Consent to operate
    PPS ltd does not have the landowner’s authority to pursues charges. Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authorisation from the landowner to operate on the land.

    PPS Ltd is put to strict and unredacted proof that at the time of the alleged event they had both advertisement consent and the permission from the Lessor to display the signs and issue Parking Charge Notice.

    4) There is no evidence that PPS ltd has any proprietary interest in the land
    PPS ltd does not own the car park and have no legal authority to issue Parking Charge Notice in land that they do not own. We, as the leaseholders, have the legal right to use the parking bay according to our Lease and as granted by the Lessor. Again, PPS ltd is put to strict and unredacted proof that at the time of the alleged event they had both advertisement consent and the permission from the Lessor to operate in the car park, display the signs and issue Parking Charge Notice.

    5) There was no consideration nor acceptance flowing from both parties and any contract with us, or the driver, is denied
    We, as the leaseholders use our allocated parking bay in accordance to the terms of our Lease. It is denied that there is a contract between us and PPS ltd nor our acceptance of the terms and conditions drawn up by PPS ltd by placing signs in the basement car park.

    A permit has always been displayed, as a courtesy, on our vehicle while we park in our allocated parking bay. This does not constitute the acceptance of any onerous ‘contract’ with PPS ltd. The signage onsite is there only to form a contract with non-residents and residents who do not own a car parking space.

    I hereby attached a copy of the Lease, which details our rights to use our Premises during our Term, this include our flat at xx and the parking bay numbered xx in the basement car park as granted by the Lessor. The Lease and Plan clearly shows that our vehicle has unfettered right to park in the allocated bay assigned by the Lessor.
    • Loadsofchildren123
    • By Loadsofchildren123 12th Oct 17, 11:42 AM
    • 1,239 Posts
    • 2,107 Thanks
    Loadsofchildren123
    Just a question.


    You talk about your resident's association and having kicked out the landowner's managing agents. Are you sure your "resident's association" isn't actually a RTM company? I think the RTM assumes the landowner/developer's rights and obligations under the relevant legislation. if this is right, then the RTM effectively steps into the landowner's shoes and, if the landowner was entitled to bring in agents, then so was the RTM company.
    • Umkomaas
    • By Umkomaas 12th Oct 17, 11:50 AM
    • 14,853 Posts
    • 23,306 Thanks
    Umkomaas
    POPLA will avoid adjudicating on issues surrounding your lease. That will be a more powerful argument at court level. Leave it in your appeal (more for PPS to have to deal with in their own evidence pack for you and POPLA).

    You also need to include specific appeal sections on:

    * PoFA and No Keeper Liability
    * No proof that the registered keeper was the driver at the time of the parking event
    (Both above - provided no identification of the driver has been provided to PPS)
    * Signage - I know you’ve included a bit in various parts of your draft, but it is weak and needs its own detailed demolition of the on-site signage (including photos to back up your points).

    I don’t think residential signage needs advertising consent, you could check whether it does or not with your local council, but I’ve never seen POPLA adjudicate on it. If it does need consent, leave it in your appeal, again more for PPS to deal with, then report them to the council if you find they don’t have it. Hassle is a two-way street!

    For all and each of the above appeal points there are ready-written (winning) templates for you to copy and paste to bulk out your appeal, and with the correct wording to avoid making any inadvertent errors, and which POPLA have accepted many times previously. Go to the NEWBIES FAQ sticky, post #3 for the templates.

    As PPS have sent you a NtK and as this isn’t a railways/dock/airport bylaws case there is no reason to delay sending in your POPLA appeal - other than to say, give time for regulars to have the chance to comment on your next draft.

    To summarise, I don’t think your current draft is strong enough for a slam dunk. Adjust the current draft, add in the points I’ve given you, and subject to drafting, it will put you in a much stronger position to knock back PPS.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • kaych
    • By kaych 12th Oct 17, 12:02 PM
    • 313 Posts
    • 172 Thanks
    kaych
    Just a question.


    You talk about your resident's association and having kicked out the landowner's managing agents. Are you sure your "resident's association" isn't actually a RTM company? I think the RTM assumes the landowner/developer's rights and obligations under the relevant legislation. if this is right, then the RTM effectively steps into the landowner's shoes and, if the landowner was entitled to bring in agents, then so was the RTM company.
    Originally posted by Loadsofchildren123
    Our RA is a RTM company, does it weaken my case and I can't use my lease to appeal?
    • kaych
    • By kaych 12th Oct 17, 12:06 PM
    • 313 Posts
    • 172 Thanks
    kaych
    POPLA will avoid adjudicating on issues surrounding your lease. That will be a more powerful argument at court level. Leave it in your appeal (more for PPS to have to deal with in their own evidence pack for you and POPLA).

    You also need to include specific appeal sections on:

    * PoFA and No Keeper Liability
    * No proof that the registered keeper was the driver at the time of the parking event
    (Both above - provided no identification of the driver has been provided to PPS)
    * Signage - I know youíve included a bit in various parts of your draft, but it is weak and needs its own detailed demolition of the on-site signage (including photos to back up your points).

    I donít think residential signage needs advertising consent, you could check whether it does or not with your local council, but Iíve never seen POPLA adjudicate on it. If it does need consent, leave it in your appeal, again more for PPS to deal with, then report them to the council if you find they donít have it. Hassle is a two-way street!

    For all and each of the above appeal points there are ready-written (winning) templates for you to copy and paste to bulk out your appeal, and with the correct wording to avoid making any inadvertent errors, and which POPLA have accepted many times previously. Go to the NEWBIES FAQ sticky, post #3 for the templates.

    As PPS have sent you a NtK and as this isnít a railways/dock/airport bylaws case there is no reason to delay sending in your POPLA appeal - other than to say, give time for regulars to have the chance to comment on your next draft.

    To summarise, I donít think your current draft is strong enough for a slam dunk. Adjust the current draft, add in the points Iíve given you, and subject to drafting, it will put you in a much stronger position to knock back PPS.
    Originally posted by Umkomaas
    Thanks Umkomaas. I will stick to the templates and will revise my response accordingly. Thanks
    • safarmuk
    • By safarmuk 12th Oct 17, 12:16 PM
    • 554 Posts
    • 972 Thanks
    safarmuk
    Our RA is a RTM company, does it weaken my case and I can't use my lease to appeal?
    IMO, no. Your lease is still the binding contract. However:
    What Umkomaas is saying is that POPLA won't understand the lease points that well so you need all the other relevant POPLA appeal points as well and;
    What LOC123 means is the RTM company, if it is as she infers, may have assumed the rights of the freeholder and therefore do have the ability to appoint agents and enforce terms in the lease. This however does not negate your lease in any way in my opinion, it still stands as the prime agreement.

    This is another discussion but for me a RTM company have only really assumed the "rights to manage the estate" rather like a Managing Agent. The RTM company can appoint their own chosen MA if they choose to do so (as opposed to have to put up with the one the freeholder appoints). I don't 100% yet believe a RTM company obtains all rights to the land (although I could be wrong), however the way to find out would be to check the incorporation documents (like I told Daniel San on his thread) for the RTM company - these will be freely available on the Companies House website (you just need the name or company number of the RTM company to find it).
    Last edited by safarmuk; 12-10-2017 at 12:19 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 12th Oct 17, 12:36 PM
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    • 2,107 Thanks
    Loadsofchildren123
    Agree with safarmuk's first para.


    I'm not a land lawyer and don't fully understand RTMs and their legal status insofar as taking over rights/obligatons of the freeholder is concerned.


    Your lease arguments remain. The only argument that may go is authority (that the PPC has no contract with the landowner but only with the RTM - if the RTM acquires the landowner's rights then it does have authority to contract with a PPC - the arguments about their right to impose a PPC on you remain regardless)
    • safarmuk
    • By safarmuk 12th Oct 17, 12:42 PM
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    • 972 Thanks
    safarmuk
    Your lease arguments remain.The only argument that may go is authority (that the PPC has no contract with the landowner but only with the RTM - if the RTM acquires the landowner's rights then it does have authority to contract with a PPC - the arguments about their right to impose a PPC on you remain regardless)
    Spot on, this is the open point. But as LOC123 says it doesn't effect your lease arguments. If the lease doesn't allow for the imposition of this parking scheme on you then it matters not whether the RTM company have the right to appoint them or not (if they don't as they haven't obtained the land rights then this is just a further additional point you can use).
    • kaych
    • By kaych 12th Oct 17, 12:43 PM
    • 313 Posts
    • 172 Thanks
    kaych
    Ah !!!!!!, just searched the incorporation document of our RTM company. In there the RTM is allowed to 'to enter into contracts with builders, cleaners, contractors, gardeners, tenants, or any other person" and "to employ any staff and managing or other agents"
    • kaych
    • By kaych 12th Oct 17, 12:48 PM
    • 313 Posts
    • 172 Thanks
    kaych
    Spot on, this is the open point. But as LOC123 says it doesn't effect your lease arguments. If the lease doesn't allow for the imposition of this parking scheme on you then it matters not whether the RTM company have the right to appoint them or not (if they don't as they haven't obtained the land rights then this is just a further additional point you can use).
    Originally posted by safarmuk
    OK that's good to know. so RTM has the right to appoint but not RTM nor PPS has the right to issue tickets. unless of course the issuing of tickets falls under 'other regulations' in our lease...
    • safarmuk
    • By safarmuk 12th Oct 17, 12:49 PM
    • 554 Posts
    • 972 Thanks
    safarmuk
    Ah !!!!!!, just searched the incorporation document of our RTM company. In there the RTM is allowed to 'to enter into contracts with builders, cleaners, contractors, gardeners, tenants, or any other person" and "to employ any staff and managing or other agents"
    Just like a lease you need to read the incorporation document in its entirety not just individual sections unfortunately. The document won't give it Carte Blanche to override the lease ...

    Plus it will also lay out its obligations that will allow you access to information that you may be able to use to your advantage ...

    The problem with RTM companies is when they are set up everyone is all in favour mainly because they are annoyed with the current MA. Then people lose interest and only a few residents remain involved making lots of decisions that eventually start offending those residents who lost interest! RTM is a double edged sword.

    Your RTM company should have directors ... do you know them?
    • safarmuk
    • By safarmuk 12th Oct 17, 12:51 PM
    • 554 Posts
    • 972 Thanks
    safarmuk
    OK that's good to know. so RTM has the right to appoint but not RTM nor PPS has the right to issue tickets. unless of course the issuing of tickets falls under 'other regulations' in our lease...
    That's what we need to establish, does your lease support what has been going on. If not then they can't do it ...

    Ultimately there is nothing stopping someone putting a ticket on your car (apart from trespass and harassment laws) but claiming they have the authority to enforce the purported debt and taking it all the way to court ... that is another matter.
    • kaych
    • By kaych 12th Oct 17, 12:59 PM
    • 313 Posts
    • 172 Thanks
    kaych
    OK thanks Safarmuk and LOC123, I will read through the RTM document.

    Regulations is defined in our lease as "means any reasonable regulations made by the Developer from time to time for the proper management and and use of the Development and/or the Reserved Property and do not unnecessarily restrict the enjoyment of the Premises". Obviously they have destroyed my enjoyment by issuing me a PCN!

    Anyhow, will be drafting a new appeal in due course. Many thanks all for the comments and help so far!
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