New parking regulations at home...

The_Deep

Do you read LandlordZone?


There may be some experienced landlords there.

Coupon-mad

I think '3rd' needs to read 'third' and 'PPC' needs writing in full the first time with (PPC) in brackets straight afterwards, which then means the (little known, forum speak!) acronym 'PPC' can be used after that and makes sense later on.

Also I would add to this, something like these words (or your own version):

You may wish to consider the proper steps to attempt to lawfully implement such a scheme, which I can assure you I will certainly argue against, on the grounds it is a matter of derogation from grant to allow a rogue ex-clamping firm to purport to re-offer parking on worse terms than is already granted to me as part of the rights and easements I enjoy under my existing lease.

As you are agents contracted by the landowner, I would remind you that the landowner remains at all times jointly and severally liable for your interfering actions. Further, the landowner will be jointly and severally liable for any loss caused to me or any other driver who finally realises what you have attempted to do, in unilaterally undermining the rights and the primacy of contract enjoyed by the very people whose interests should come first - the residents.

Daniel_san

Thank you both.

I have amended with the additional content suggest, thank you CM.

I have a free slot at a solicitors in the morning regarding some other ongoing issues with WE. It seems there is no longer a requirement for an RTM Ltd company hold an AGM, and all requests from me to WE for one to be scheduled have been refused, but they have asked me to inform them of any issues I have. So I am seeking some advice to clarify the following, as WE have no regard for right and wrong, but only whatever serves them it seems:

I've requested to become a director, which apparently I can do myself, but I cannot find out how exactly. WE said the existing director will need to nominate me, but she will not do this as one of my issues directly relates to her conduct. So I hope to find out if/how I can force that issue, to have more say in the running of the building, and ultimately replace WE if need be.

I believe there should be at least 3 directors. There are 100 flats after all. I understand it is actually a requirement to have 3, unless an ordinary resolution is passed. I want to clarify this.

The current director has breached her fiduciary duties, by starting her own cleaning company, then as the director of our RTM Company, deciding that the current cleaners were not doing a good enough job, so firing them, putting the cleaning contract to tender, and then awarding herself that cleaning contract (most expensive quote by a few hundred £), increasing cleaning from once per week, to twice per week, further increasing the running costs of the block. A CLEAR conflict of interest which I have bought to the attention of WE previously and been fobbed off. They flat out refuse to acknowledge it as an issue.
(Companies Act 2006, Section 170 "Scope and nature of general duties"
(2)A person who ceases to be a director continues to be subject—
(a)to the duty in section 175 (duty to avoid conflicts of interest) as regards the exploitation of any property, information or opportunity of which he became aware at a time when he was a director

Lastly, (for now I'm sure) when residents have received the accounts summary each year, it always shows an amount for Accountancy, but never any invoice for it. I asked several times where the invoice is from the accountant that has inspected and signed off the accounts, and have been fobbed off, as though they are confused what I mean, but finally stated that they do the accounts themselves, which I understand is expressly forbidden, and I confronted them about this - they claimed confusion again as to what I was asking, and said they are waiting for the invoice still, even though they had entered an amount into the accounts for that period. The latest set of accounts has now actually included a statement from an accounting firm to say they inspected and signed them off etc, which is a first (coincidence? I think not). So they obviously got the message there that I knew they were doing something wrong!

I'm just totally fed up with hitting a brick wall when confronting them with their wrong doings. I have no power to do anything about it, as the sole director is, for lack of a better way of putting things, in bed with WE. They are clearly scratching each others back, so I cannot rely on the director to look out for the residents without considering herself first. I am hoping a solicitor can advise me on steps I can take. I thanks everyone here also, the help has been invaluable at all times.

safarmuk

Dan, I read your (recently re-started) thread today from start to finish today with great interest.
Your situation is not unusual I am afraid, and especially at the location where I have a flat we have endured similar issues (parking, increasing costs etc.) which we are tackling.

One thing we found worked very well initially is contacting the Freeholder themselves - I am not familiar with RTM so I am not sure if RTM means you have no freeholder. However if you do we had very good initial success contacting them (I haven't seen any mention in your posts about this) and they forced the MA to act more reasonably.

Later I will try and post some more ideas we had but am very interested to hear how you continue to get on and if we can help with advice we will.

Daniel_san

Just a quick update to the thread. I wrote a letter of complaint to my managing agent (thanks CM and others for the input on a recent post)

Following recent communication with you, I outline a formal complaint to you. Please respond within 30 days stating your company viewpoint.

There are four parts to my complaint.

1: Parking – this follows previous communication included on further emails below for your reference..

My argument, which is what you are missing, is and has always been, that my lease does not state a permit is required to park a vehicle in the car park. It mentions nothing at all about a parking scheme, private or otherwise.
To introduce such a scheme, as you have attempted to do on three occasions now, would require the lease to be amended.
You state that clause 5.4 of my lease, allows you “as managing agents to instruct parking controls as we see fit”. This is incorrect. This clause is for changes to the lease, which you now state you haven’t changed. This clause gives you precisely ZERO authority to amend my lease.
So if the lease has not been changed, which of course it hasn’t, as I haven’t agreed to and signed anything to say it has, then you are acting outside of your authority, which is what I explained to Wendy several years ago when your sister company UCS Parking was contracted with.

I’ve demonstrated that you cannot do this over 20 times already by way of appeals to PCN’s issued to a vehicle outside of a space. I’ve over 50 PCN’s cancelled, on appeal, at considerable time incurred, due to no locus standi. Yet for some reason you still think you are right and I am wrong.

This is now the third private parking company (PPC) you’ve contracted with, without authority to do so. You may have used the same tactic at other locations you manage, and people may well accept whatever you say and people may just pay PCN’s, but that doesn’t mean you actually did it lawfully. Some people are scared into paying by the volume of letters from debt companies and the threats they make; I have over fifty letters including fake court papers in an attempt to make me pay what is basically a speculative invoice. I do wonder what made you choose the PPC that were exposed for their dodgy practices by an undercover reporter for BBC Watchdog back in 2015?

I’m sure you are just as tired of having this discussion as I am, so I am now INSISTING that you inform the PPC to White list my VRN’s (****** / *****) and allow me the quiet enjoyment my lease allows me. You may wish to consider the proper steps to attempt to lawfully implement such a scheme, which I can assure you I will certainly argue against, on the grounds it is a matter of derogation from grant to allow a rogue ex-clamping firm to purport to re-offer parking on worse terms than is already granted to me as part of the rights and easements I enjoy under my existing lease.

As you are agents contracted by the landowner, I would remind you that the landowner remains at all times jointly and severally liable for your interfering actions. Further, the landowner will be jointly and severally liable for any loss caused to me or any other driver who finally realises what you have attempted to do, in unilaterally undermining the rights and the primacy of contract enjoyed by the very people whose interests should come first - the residents.

The PPC is in breach of the Data Protection Act by gaining my personal details from the DVLA without reasonable cause. Partly due to them entering a contract with you under which you have zero authority to undertake. You’ve misled them basically. If they attempt to pursue me through the courts, they will lose, and then they may wish to seek recompense from you, that is a matter for them. I will also issue proceedings against the PPC and Warwick Estates and seek damages for the breach of DPA and for tortious interference of my lease contract. Once the court rules the PPC has no authority to operate, I will invite other residents to claim any PCN charges they may have paid previously to any of the PPC’s from Warwick Estates. I will also insist at that point that the PPC be ejected from site with immediate effect.

2: [site name] RTM directorship
A single director having ultimate decision over 75 properties is not acceptable; especially given the current situation where the director is in breach of their fiduciary duties and has a clear conflict of interest. I have previously requested to become a director, as I am entitled, but so far my requests have been denied. A residents meeting is required, where nominations can be put forward and a vote taken to elect and place a minimum of three directors. A lack of opposition as well as opportunism has led to some current issues

3: The cleaning contract should be put out to tender. The current contract should be terminated and a new cleaner installed asap. The current director is in breach of their fiduciary duties and has a clear conflict of interest. Warwick Estates should not have allowed this contract to be formed in the first place. For a director to make financial gains from a cleaning contract (or other) without any consultation of residents, and with increased costs over a previous contract, for additional services which are not required and was not put to any consultation with residents, is unacceptable.

4: Accounts
I have requested several times over the past few years for copies of invoices, including the invoice from an accounting firm, which has inspected and signed off the company accounts. There have been various excuses as to why it could not be supplied, including that you are waiting for it. Then it was admitted that you carry out the preparation of accounts yourself, in house, under the guise of saving the company money. I pointed out this was expressly forbidden under the Leasehold and Tenants Act and it seems you took this on board with the latest accounts period, as they were delivered to me with a signed letter from an accountant. I now want the previous years accounts independently audited.

Yours Faithfully

Daniel_san

and today I received the following reply:


Thank you for the below email and apologies for the delay in getting back to you

In order to try and resolve some of your complaints I have referred your email along with a copy of your lease to a solicitor. I felt that we would otherwise be going round in circles and in order to try and find a resolution to this that this is the best way forward in relation to the parking. I have had confirmation from the solicitor that they are able to look into this matter and will hopefully get back to me by the end of next week if you could bear with me with this.

Directorship - The Memorandum and Articles of Association in connection with [site name] RTM Co Ltd does not give a minimum or maximum requirement of directors required

Cleaning – I am prepared to put it to tender again and then send copy of the tender report to all leaseholders for transparency. I have discussed this with the current cleaning company and hope to have this sent out next week

Accountancy – The 2014 and 2015 year end accounts were completed in house by Warwick Estates accountants and were externally certified by a company called Santry Davis, I am sure I sent you copies of these invoices last year but if you would like a further set please let me know. The 2016 year end accounts were done externally.

I will get back to you as soon as possible with regards to the parking

Kind regards



I've never received any such invoice regards the accounting, so will be asking for those by return email. I look forward to seeing which solicitor they use (Gladstones? :rotfl: ) and what they have to say with regards the parking situation.

Umkomaas

I like your letter to the MA. Well done on your resilience and your refusal to be cowed/browbeaten by them.

I look forward to seeing which solicitor they use (Gladstones? ) and what they have to say with regards the parking situation.

Gladstones? That would be a complete joke. Do let us know.

Daniel_san

I did put a rolling smiley after Gladstones, but it's vanished lol. Would be a joke though for sure. Will be interesting to see a solicitors response.

Thanks for the comment regarding the letter, all thanks to the ever helpful people here, for which I am always grateful

Coupon-mad

This one will run and run - the thread that keeps on giving!

Daniel_san

Ok, I have a LONG letter from a solicitor (not Gladstones!). Their response to my points is:

1. There is indeed no requirement under the original lease as drafted for you to display a parking permit. However, insofar as the RTM company has instructed their agent to enforce the terms of the lease in relation to the prohibition on parking on the Communal Areas other than in the allocated spaces and that enforcement is by means of a contracted agent whose terms require parking permits to be displayed then it is entirely reasonable for the RTM company to require
those you using the development to display a parking permit to facilitate the actions of its contracted enforcement agent.

2. The introduction of a contract with a parking enforcement agent to enforce terms of the lease does not require an amendment to the lease. The landlord is already compliant with the terms of lease in taking measures to ensure that the lease holders rights of access are maintained. If a leaseholder is parking other than in accordance with the lease, in other words other than in their allocated parking space, then they are indeed in breach of the terms of lease and obstructing either access, the right of way or another parking space(s). Such a breach is an enforceable breach under the terms of the lease.

3. Clause 5.4 of the lease is an extremely common provision and clear in its content. Contrary to your assertion the provision does empower the landlord/ or in this case the RTM company to impose Regulations which affect how lessees conduct themselves upon the development. Regulations might include for instance the prohibition of the erection of Estate Agent “For Sale” or “To Let” boards or such other things that sometimes adversely affect residential block of flats.
In this instance, and in relation to the parking enforcement, no new or amended Regulation is in any event required. The terms of the lease are most clear there is no right to park on or obstruct any part of the Communal Area other than in the Parking Space allocated to the individual flat. Accordingly, any vehicle parked other than in accordance with the terms of the lease is in breach of the lease provisions and, irrespective of whether another regulation has been made, the lessee responsible for that vehicle will be subject to enforcement steps taken by or on behalf of the RTM company.

4. There is no right to, and indeed there is a clear prohibition on any lessee, parking in any space (or an area that is not a parking space) other than the allocated space relevant to the flat to which that vehicle belongs. Accordingly, in enforcing that prohibition the RTM company or landlord are not acting in breach of the landlord's obligation to provide quiet enjoyment to any lessee. Indeed they are acting entirely in accordance with that provision in preventing one lessee from restricting the rights of way and access of other lessees on the development.

5. Given that your complaints arise from breaches by you of the provisions of your lease and your own misunderstanding of the rights and obligation falling to you and our client, our client has no obligation to you in damages in relation to your incorrect views in respect of parking enforcement undertaking at the development.

One thing that sticks out, which I admit had gone unnoticed by me (partly due to me not having me lease, after lending it to the MA some time ago, but that's not an excuse, as I could and should have pushed more to get it back), is the following clause in my lease:

"21. Not to do or suffer to be done anything which might hinder or prevent free access with or without vehicles to the entrance doors of the Building and in particular not to park or allow the parking of any motor vehicles on any part of the Communal Areas except within the [sic] or upon the Parking Space"

Now, as one issue has been that I have been parking in a non space, deemed as communal area, I feel this probably makes some case law I had noted, not helpful to me - namely

• In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
• In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

So, can anyone help on this please...

1: Based on the lease specially stating no parking on communal areas, I effectively have no right to park there, so the parking company is not overriding my "right" to park. Would you agree?

2: The solicitor states there is no need to vary the lease terms and the MA/RTM has absolute authority to introduce a PPC to enforce the terms of the lease. The PPC has a contract with the managing agent, NOT the landlord/lessor, so I would suggest it's invalid still anyway. The IPC CoP, states (as I'm sure most people are aware, but copied here anyway):

"PART B - Operational Requirements Applicable to All Operators
1. Establishing Yourself as the ‘Creditor’.
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions".

3: In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.
As no notice was given to me at all regarding this latest contracted PPC, could I reasonably be expected to agree to such terms as displayed on a PPC sign errected in the car park?

4: If, by parking in a non space, I am allegedly in breach of the contract (as the solicitor states and I may or may not agree with), surely this breach would be a matter of trespass in the first instance and as such the lessor would be the only person who can take action?

5: If it is in fact clear that parking anywhere other than the allocated space, is a breach of the lease, would someone still be in breach if they parked in another flat's allocated space, with their permission? It would seem ok to me, but given their statement is that this is a breach of the lease, then surely that is also. I ask, because the director is doing exactly this, yet nobody is batting an eyelid about it. In fact, the third schedule, point 10, specifically states not to assign or part with or share possession of the parking space. If they are intent on enforcing lease terms, surely this one should be dealt with also?

Appreciate input as always. Thank you