New parking regulations at home...

Coupon-mad

Now this will be fun because the MA have paid for that letter and hope to crush you, so you do the opposite and keep replying to the Solicitor, pointing out the faults in their opinion. In any event it is only an opinion on behalf of the MA, so of course, 'they would say that, wouldn't they?' Changes nowt.

Keep replying; the MA will get tired of paying for legal input and letters. How about demanding as well that the MA return your lease they've held on to since xx/xx/xx because the document is yours and this dispute revolves around the lease, not any third party cardboard signage bunged up with cable ties in the car park, with no agreement or advance notice. In Jopson v Home Guard (a persuasive appeal case from less than a year ago) Judge Charles Harris QC found that a parking firm can't disregard the rights of residents - send them a copy of the transcript if you haven't already.

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?

Yes and I think that is answered by your own point #4. Trespass cannot be twisted into an 'agreed contract to allow trespassers at a price' - that would be perverse - and damages arising from any alleged trespass are only a matter for a landowner, as you rightly say.

Taken from the Supreme Court decision in Beavis v ParkingEye:

97. ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

Lord Mance at 192: ''The position in tort may one day merit closer examination, since it is not clear to me on what basis, other than contractual, the driver of a vehicle can incur any obligation to pay a sum in the nature of damages as a result of a trespass or other tort, however much notice was given to him or her when the vehicle was parked.''

and

''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.''

safarmuk

IMO the major issues here for the MA is that even if by parking in communal areas you are breaching the lease this is a breach between you and the landowner ... and it is the landowner that needs to enforce the breach of lease not a third party.

To me this is a fundamental issue with PPCs in Residential Car Parks irrespective of what the lease does or does not say.

I am presuming you are not getting PCNs in your allocated bay right? Because the solicitors letter above kind of gives you the green light to not show a permit in your bay and as a result you would not be breaching the lease and therefore you would not be subject to any kind of enforcement. Is that your and C-Ms understanding too?

Daniel_san

Thank you CM and safarmuk, and apologies for the late thanks. I am busy picking apart their letter and will be sure to post my draft reply before committing it to email.

safarmuk, yes exactly, a breach of the lease would be a matter for the lessor, not managing agent, and not the PPC.
Absolutely, this issue seems to exist FAR too much across the country, and is partly why I have continued this argument for over 2 years now, with me parking a 2nd vehicle in a non space, gaining PCN's regularly, which have all been cancelled by the PPC because they fail to follow procedure or cancelled at POPLA. The MA seems to think they can do what they like, which I feel is classic bullying tbh. It must stop.

I "opted out" of the scheme from the start, and the MA agreed to exclude my allocated space, on certain conditions, which I rejected all of on the basis I was not negotiating my position, but exercising my right to refuse. In any case, my excluded space was still subject to 20+ PCN's over the last 2+ years, with all of them apart from a last one a few weeks ago, being cancelled at some stage of the appeals process.


Interestingly, the solicitor points out that the PPC is there to enforce the lease contract terms, but within the lease, it has this clause:

"9: A person (a “THIRD PARTY”) who is not either a party to this lease or a successor in title is a party to this lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDING THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that act”.

Now, as always, these clauses are written to boggle the brain while reading.....so, does this clause effectively mean their argument is out the window? It seems to me that it says a third party cannot enforce any term of the lease? Could someone with more brains than me please provide their opinion?

Thank you

DoaM

As I read it ... unless there is something in the agreements between lessor and lessee that confer rights on the 3rd party, they have no rights at all.

Daniel_san

Draft reply to MA / solicitors. Feedback appreciated, thank you.

Dear Sirs

I am in receipt of your letter dated 3rd May 2017; the contents of which, are noted.

1: You stated that you read through my email of 27th April and studied it carefully, but your point numbered 3 is incorrect. What I said in my email to Warwick Estates was as follows:
“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”.
Nowhere here or elsewhere at any time have I said anything about the landlord/land owner/lessor’s ability; only that of the managing agent. In fact, the clause is clear that the “Lessor may….”. I am happy to clarify this for you to avoid confusion on this important point. I also point out that the lessor, has not, at any time.

2: There seems to be confusion with regards to the need to amend the lease for the purpose of implementing such a scheme operated by a private parking company (PPC) in a residential development, where the parking terms are covered by a lease. I believe it certainly would require an amendment to the lease to notify me of a need to display a permit for parking, along with outlining the financial “penalty” charge amount for any such breach. I believe that Warwick Estates AND a previous PPC “TNC Parking”, a sister company of Warwick Estates, also deem there a need to amend the lease, as they sent letters to residents with new, replacement lease terms, specifically labelled as points of the lease Third Schedule 27.1 – 27.3 (copy attached).

Additional, I refer to:
Link Parking v Ms P C7GF50J7 [2016] where it was found that the parking company could not override the tenant's right to park by requiring a permit to park. This would apply not only to me, parking a vehicle in a space allocated to me by my lease, but also to every other resident at [site].
And
Jopson v Home Guard (transcript copy attached), Judge Charles Harris QC found that a parking firm can't disregard the rights of residents.

3: Lease Third Schedule:21.
If it is alleged, that by parking a vehicle outside of a parking space, deemed as the communal area, is a breach of the lease, then that breach may amount to a tort of trespass, for which the landlord may decide to take action. It is certainly not an issue for a PPC for which no contract was ever offered for consideration and acceptance, so no valid contract for which they place reliance upon, exists. I refer to the recent Parking Eye Vs Beavis case:

97. ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

Lord Mance at 192: ''The position in tort may one day merit closer examination, since it is not clear to me on what basis, other than contractual, the driver of a vehicle can incur any obligation to pay a sum in the nature of damages as a result of a trespass or other tort, however much notice was given to him or her when the vehicle was parked.''

''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

4: Further to the above, let the record show that no notice was ever given to me regarding this latest contracted PPC. I am now aware other residents were sent letters informing them of a new PPC and start date, but no such letter was sent to me and it is my belief this was intentional, as I have previously been told I “don’t take part in the enforcement” as per the below email sent to me.

“
From: Beverley Squire [mailto:Beverley.Squire@warwickestates.net]
Sent: 16 December 2015 16:55
To: [email]
Subject: RE: Contract
Not for ukps no, you don’t take part in the enforcement”

This was in response to the many requests I’ve sent, asking for “any and all contracts relating to parking at [site]", many of which were refused, including as above, on the basis it doesn’t relate to me.

Additionally, new signs were erected in the car park in an attempt to implement a contract by performance, where terms regarding parking already exist within the lease. This is a gated development, accessed only by electronic “fob”, obtained only by genuine residents. There is no need for any parking control and these signs are irrelevant to lease holders who are already aware of parking terms as set out in their lease.

5: The PPC are members of THE INTERNATIONAL PARKING COMMUNITY, and as such, are governed by their ACCREDITED OPERATOR CODE OF PRACTICE, PART B - Establishing Yourself as the ‘Creditor’ states clearly:
“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”.

The PPC have failed at the first step, as they have formed a contract with the managing agent, Warwick Estates, and there is no contract with the land owner. Therefore, the contract is invalid for the purpose of establishing themselves as the claimant. This also means that each and every time they access keeper details, without reasonable cause, they are in breach of the Data Protection Act, along with the KADOE contract governing release of data from DVLA records. If the PPC were British Parking Association members, as the previous two PPC’s have been, giving me access to a proper, independent appeals service (POPLA), I would simply appeal the parking charge notices (PCN) and force their cancellation as I have done more than TWENTY times already.

6: Where a contract exists between two parties, and one party alleges the other has breached it, that party may decide to take action to enforce it. Such action is not to employ a third party, private company, in an attempt to foist new terms upon the other party to purport to enforce the original contract, with financial penalties due for alleged breach of the additional contract terms, which have not been agreed to. In the current situation, it seems to be the case that it’s ok to breach the original lease terms, providing a fee is paid.

7: Further to 6, clause 9 of the lease “THIRD PARTIES”, says:
“9: A person (a “THIRD PARTY”) who is not either a party to this lease or a successor in title is a party to this lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDING THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that act”. So no, a third party, in this case PPC, cannot enforce any part of the lease.

8: If this is, as you say, about enforcing the lease terms, then I assume similar action is being taken against other leaseholders that could be deemed in breach?
The Third Schedule:10 (A) “Not to assign or part with or share possession of the Parking Space separately from the demised premesis”
Warwick Estates must be aware, as is the Director of Albany Heights RTM, that there are at least 2 cases where the above has been breached.
1: In the case of a leaseholder who has for almost 10 years now, allowed use of the parking space by a non resident; a commuter who parks and travels to London each day, and has an electronic “fob” to access the residents only car park.
2: In the case of the director herself, who has use of a second parking space, through whatever agreement with the owner of flat 21, which would amount to a breach, with both lease holders being co-conspiritors
I ask what action is being taken to enforce the lease terms in both cases?[/email]

Coupon-mad

1: In the case of a leaseholder who has for almost 10 years now, allowed use of the parking space by a non resident; a commuter who parks and travels to London each day, and has an electronic “fob” to access the residents only car park.
2: In the case of the director herself, who has use of a second parking space, through whatever agreement with the owner of flat 21, which would amount to a breach, with both lease holders being co-conspirators.
I ask what action is being taken to enforce the lease terms in both cases?

I've corrected the typo in the above end paragraph but I love that bit!



Have you read hairray's thread? You may need to use the LBC letters written by LoadsofChildren123 on that thread - brilliant.

patman99

Daniel, I really can't believe how stubborn the management company are being over this.
They obviously misplaced the company brain cell as they are totally failing to understand what you are telling them.

I do hope you have been educating your fellow residents about the scam being carried on right under their noses.

It would be good if you could find a few residents who have received and actually paid a PCN from one of the many PPCs who have blighted the site over the years.
You could then assist them in reclaiming the money from the relevant PPC.

Of course, the PPC won't pay, so it would be necessary to begin a Court claim against both them and the management company and the director.

Only then, when a Judge has read them the riot act, will they finally understand and kick the PPC off the site.

Daniel_san

Thanks as always for the replies. Thanks CM for pointing out the spelling error, I'd neglected to spell check the entire thing before copy-pasting. I'll be sure to do it before sending the email. Glad you approve :rotfl:

patman99
Tell me about it.....I've told them so many times that they can't do what they ARE actually doing and they just carry on regardless. It doesn't help that the RTM director is on their side - clearly her own newly started cleaning business benefits greatly by her letting the MA do as they please. It absolutely will end in court, most likely initiated by me, as so far no PPC has dared to go further than sending me fake court paperwork. The MA simply refuse to accept they are wrong. The very fact they chose, at this late stage, some 2.5 years into this argument, to engage a solicitor, after exhausting all their own arguments, shows they don't have a clue as to the legalities, and simply did what suited them. The whole thing started due to the director being blocked in her parking space one day by another car. She complained to the MA, they rubbed their hands together and suddenly we have UCS Parking signs up.

I'm now waiting on the MA to follow up on one matter and then I can respond to everything. This relates to my previous post #216 and #217, points 2,3,4 (Directorship, cleaning, accountancy), as the MA's latest response was:

"Cleaning – As promised this was put to tender at the end of last week, we have given the contractors 3 weeks to return quotations and on receipt the information will be put to all leaseholders for transparency.

Accounts – I have attached again copies of the invoices from Santry Davis for the accounts year ended 2014 and 2015. The 2016 accounts were completed externally and therefore no certification was required. I have however attached a copy of the invoice from the accountant that completed the 2016 accounts for your reference and as proof that these were not done by Warwick Estates

Agm and directorship – I am waiting for solicitors confirmation on this point and will refer back to you next week

I'm keen to ensure when they ask the leaseholders which cleaning contract they approve of, they point out the obvious conflict of interest with regards the director's own company being given the contract by (strangely enough) the directors own approval. Covering up that connection is not an option in my mind.

The accounts don't add up......there's something dodgy here for sure!
I previous got them to send me all invoices 2013-14 and 14-15. There are no invoices for accountant being audited or anything, yet there are amounts in the year end accounts they sent me. The MA said they prepared the accounts, I pointed out they can't do that, and the latest set of accounts has been done by a proper accountant, and I have an invoice for this. The MA have now provided me with 2 invoices from a different accountant, for the "non audit" service 2013-14 and 14-15 accounts, with both invoices dated 2nd June 2016 and both for the sum of £295 inc vat (consider that our year end is 30th June, and that the 2013-14 accounts were presented to me on 13th July 2015, and 2014-15 accounts on 4th December 2015.....both clearly well before the accounts were even signed off on 6th June 2016 it seems!). The charge on the accounts was for £1197 and £1210 respectively, but there are no invoices that show the remaining amounts and who they were paid to. I assume the MA had this amount. 13-14 and 14-15 accounts were also both signed off in a written statement "for and behalf of Warwick Estates" and also signed by the director. The latest accounts 15-16 were prepared by an accountant and the accountant signed off with their own statement, they also provided an invoice for the amount reflected in the accounts (right after I pointed out the MA can't do the accounts themselves, strangely).

I've repeatedly asked for an AGM and as there is no requirement for it, it's been refused every time. I've no asked for new/more directors, a minimum or three, to be appointed. I'm told there is no requirement for more than one, but I feel it must be changed given the obvious conflict and issue arisen. One director cannot have carte blanche over 75 apartments.

Anyway, I rambled on a bit about non parking related issues. When I have the MA's response on the above, I'll be able to hit them with the next chapter regarding parking! :beer:

I'll find and read through hairray's thread after I've done dinner, thanks again for that CM

Umkomaas

The whole thing started due to the director being blocked in her parking space one day by another car. She complained to the MA, they rubbed their hands together and suddenly we have UCS Parking signs up.

In microcosm this is what happens in many cases - a few rogue parkers in hospital/supermarkets/retail parks/hotels and the like. Someone 'in authority' personally doesn't like it and calls in a PPC, who drool and salivate over the prospect, sign up a 5 year deal with the principal, remove the rogue parkers in short order ............... then rape and pillage all and everyone who make the most minor of indiscretions against their heavily-weighted (in their favour) rules and regulations.

"Sorry Mr Principal, prematurely terminate our contract with you because this is seriously affecting your customers and your business? Certainly - let me recheck our contract with you. Yes, that's in order, just 6 months notice, then one third of a million pounds termination fee please".

:eek:

Daniel_san

Hi all, forgive me for this one, as it's off topic somewhat, but I'm hoping for honest feedback or a point in the right direction. Does anyone feel I'm wrong, is the question....

In short, it's about the cleaning of the block I live in.
MA takes over. 1 resident becomes director. Director starts cleaning company. Director decides current cleaner is no good, and the block needs cleaning twice per week, instead of once. Director appoints her cleaning company as the new cleaner, twice per week. Increase cost to the block of circa £3000 per annum.

I've complained about this. Breach of Fiduciary duties......conflict of interest......zero sign of an ordinary resolution that from what I understand, would be needed to allow a director to be involved in a decision where conflict has arisen.....zero consultation of residents.

Following my complaint, a letter has (apparently) been sent to all residents, with details of the new tender for cleaning, costs etc, with the directors company name and cost being in bold. In the letter, the MA state that the current director fought to gain RTM control over the block for the residents. It states that although cleaning has always been done once per week, it was "generally regarded that this was insufficient" - as they didn't actually ask anyone, how can they say this? It asks for leaseholders, many of whom don't even live in the block, to send in a form if they object to either the current company, or the frequency, and states that they will go with majority verdict, or if they do not hear from you, they will assume you approve. It further suggests that if you do not live on site, you should visit and inspect before making up your mind. Once again, the director has quoted, with the quote being the 2nd cheapest by a few hundred.

To me, this seems like they've got themselves under the table and now you have to make effort to get rid of them, and if leaseholders can't be bothered, because on paper the cost is low, they carry on as they were. It also seems incredibly biased in the way the information is given, as they certainly don't provide any information on other contractors that have tendered.

What do you think please, anyone? I am being unreasonable? Do I have a bee in my bonnet over this that I should just let go?

Thank you to anyone who takes the time to respond and again, sorry for the off topic post. I promise it will return to parking wars soon