New parking regulations at home...

Loadsofchildren123

I haven't spent hours reading it, but unless I am missing something... my post #296

Sorry, just re-reading the lease given your question above - clause 5.4 DOES allow new regulations "in the interests of good estate management", and the right specifically includes new regs in relation to the parking spaces. It says that such new regs shouldn't conflict with the lease (but the lease specifies that the QE covenant only applies to the flat, not the parking space).


So it's arguable that they can introduce parking regs.


BUT as per hairray's thread advice, what they can't do is impose on you a contractual relationship with a third party or the obligation to pay a charge for failing to comply. As the regulations are a matter between you and the landowner, the PPC can only act as landowner's agent, and so I can't see how it's entitled to bring proceedings in its own right.


Plus it's unclear how such new regs are to be introduced in order to be effective - eg in writing.


I'm unclear what you're saying about communal parking. You have no specific rights about that in your lease, other than vague rights to do things like pass over "communal areas".


I suppose there's an argument that if you have no rights to park in the communal areas then you're trespassing. But the PPC will say it's authorised to offer a contract to park there and it did offer a contract (presuming its signs were up) and you accepted the contract. Freeholder will say that 5.4 applies and it was entitled to impose the requirement for a permit. Because it's a communal area you don't have the argument that you had a right to quiet enjoyment or exclusive rights to that spot which were breached. You do have these arguments/protections if you were parked in your particular spot (64). The only argument you really have, aside from that these types of Regulations are not permitted under 5.4 (weak), is that nowhere in the lease does the landowner have the right to impose on you a contractual relationship with a third party.

safarmuk

1. Gives you exclusive rights to park in a specific space (but this space is not part of the "demised property" - so in other words you don't own the leasehold title to it, but have exclusive rights to it).

This is common, a lot of leases I have seen now outline the demised premises as the flat but your allocated parking space is a Particular (e.g. an explicit item in the lease) and demised rights to the "exclusive use of" are granted. Often demised rights are often granted to the use of Visitors Bays and/or common areas.
@Dan - does your lease mentioned "demised rights" anywhere around your allocated parking bay clause?

3. It does NOT provide for any new "regulations" to be introduced. The existing regulations are irrelevant because they don't require any permits to be displayed.

This is the bit I am less clear on, LOC123 would you be able to elaborate on Dan's lease here? Is it his lease just lays out regulations but does not have a clause saying the MA can implement new ER's from time to time for the benefit <blah><blah> etc. and that none of the existing regulations relate to parking?

and you also argue that even if the new regs include parking permits, there's nothing in the lease that allows the freeholder/its MA/MC to make you a party to a contract with a third party pursuant to which charges separate to the ground rent/service charge can be levied.

This is fundamental and in my opinion the massive flaw here. If the lease does not allow the MA to increase or introduce charges then the whole PPC scam is blown out of the water. They can send as many irritating letters as they want but a court claim is doomed to failure.

You can argue that your right to park is unfettered by any regulation to display a permit (the only relevant regulations say things like that you must only park a private vehicle on it under 3 tonnes etc etc) and the lease gives nobody any right to change that.

Every lease mentions the 3 tonne restriction, it's to stop commercial vehicles and lorries parking there. This would be an existing parking regulation.

Loadsofchildren123

I believe "9 Third Parties" on Page 13 means that the PPC has no rights to enforce any term within the contract?


That means the PPC can't try to enforce any terms of the lease - so I think this means that they can't claim that the requirement for a permit is part of your lease, being a new "Regulation" that has been lawfully introduced. But they can sue you in their own right - eg by proving that you entered into a contract with them.


It's odd that the landowner provides communal parking but the lease is completely silent on their use. You'd have to look at what was implied - the most obvious implied term is that they are for visitors, but there's nothing limiting them to visitors and so it's arguable they are for all residents, on a first come first served basis (although this conflicts with, as you say, clause 21 of Schedule 3 - but against this you'd say you were parking in a marked bay and therefore not causing an obstruction at all). The lease was obviously drafted by person who didn't know there was going to be communal parking. Where a contract is silent on important things the court has the power to impute a term or terms to give it efficacy.


Not sure a judge in a small claim is going to want to get bogged down with this and may just declare that landowner is entitled to introduce these new regs, and it's then down to you to argue that these cannot include imposing a contract with a third party, and in fact clause 9 on p12 specifically prevents this.

Loadsofchildren123

@safarmuk - my first post about the lease was wrong, I read it too quickly. There is a clause allowing new regulations, which is what I'd have expected to see.
Danielsan's lease is much shorter than hairray's
pm me your email
You are right, the crux of this is that even if they are entitled to introduce new regs of this nature, that cannot include the right to impose a new contractual relationship with a 3rd party in respect of pre-existing rights, including an obligation to pay charges for any breaches which are outside of the service charge/ground rent provisions.

safarmuk

@safarmuk - my first post about the lease was wrong, I read it too quickly. There is a clause allowing new regulations, which is what I'd have expected to see.

OK, thought as much but it must have the caveat about "for the benefit ..." etc. This is a point to argue, it seems it is of no benefit whatsoever to Dan - indeed what consideration does this ER bring to someone who has an allocated space? Zero!

pm me your email

Done, thanks.

You are right, the crux of this is that even if they are entitled to introduce new regs of this nature, that cannot include the right to impose a new contractual relationship with a 3rd party in respect of pre-existing rights, including an obligation to pay charges for any breaches which are outside of the service charge/ground rent provisions.

Surely this is the killer blow to any residential PPC claim then especially once you establish Primacy of Contract (e.g. the lease is the prime and first contract)?

It's odd that the landowner provides communal parking but the lease is completely silent on their use. You'd have to look at what was implied - the most obvious implied term is that they are for visitors,

Strange lease. Most explicitly reference visitors bays as for use by visitors on a first come first served basis. That however does not stop residents using them as their second and third allocated bays which I have seen cause much irritation.

Daniel_san

Thank you.

5.4 says "The Lessor" may impose - but it's not the Lessor that is doing anything, it's the MA with RTM Co agreement. (Basically this whole scheme came about because at the time the sole director of the RTM Co was blocked in her space one day, complained to the MA and of course they jumped for joy and said why don't we bring in a PPC, which happened to be a sister company to the MA...)

The PPC contract is with the MA, not the land owner. Part of that contract requires the PPC to operate under the IPC CoP, which of course requires a contract with the land owner. The land owner says it's nothing to do with them, as there is a RTM Co involved. I have a copy of that contract on dropbox if it helps?

If I'm trespassing, then would it not be the case that only the land owner can take action for that? As per BEAVIS? I think it was Lord Mance at 97.

Copy of car park sign: https://www.dropbox.com/s/dxdtdlbuyyoqqvn/parking-sign.jpg?dl=0

I think an additional argument I have with this, now the 3rd PPC, is that neither the PPC nor the MA wrote to me to say a new PPC was being introduced, and I am aware other residents received such a letter, along with a permit (my space was meant to be exempt from the scheme, but this didn't stop the PPC's most of the time).

I'm asking btw, not arguing, just in case anything comes across that way Just looking for my best angle, and to see if this changes my letter I need to send Gladstones.

Thank you again.

Daniel_san

To clarify with regards visitor bays, there are none marked at all. There are 100 apartments and 100 spaces. The communal areas that I and others used for parking were simply side areas, unmarked, that caused no obstruction to anyone.

Loadsofchildren123

But the MA is acting as the landowner's agent so they have brought in the PPC on the landowner's behalf and the requirement to display a permit is a new "regulation".


The question is how this regulation was brought in. Were you notified? How? When? Even if 5.4 permits such new regulations, if it hasn't been properly introduced then you could argue it's invalid.


You have an obligation not to block/impede communal areas. Even if you weren't in anyone's way in parking, you weren't parked in your space and you were technically in breach of your lease obligations. Questionable whether you're in breach of contract (the lease) or trespassing. Yes, trespass actions can only be brought by the landowner.


What does the signage say?

Loadsofchildren123

And of course you have that clause about 3rd parties which means that this is not a breach that the PPC can enforce, but only the landowner.

Daniel_san

Thank you LOC.

Well this is the first time anyone here has advised that that PPC / MA contract is any way valid as an authority of the land owner.I'm not saying you're wrong of course, but it puts a different spin on information received previously.

Copy of car park signage: https://www.dropbox.com/s/dxdtdlbuyyoqqvn/parking-sign.jpg?dl=0

This is now the 3rd PPC, as they seem to come and go every year when their contract is up. The first PPC sent letters which quoted the lease clauses and replaced the wording with new wording, to include a requirement to display a permit. The second PPC did nothing other than issue permits. This now third PPC or the MA, I'm unsure which, apparently sent a letter with permit enclosed, but I was not sent anything at all. I only know of its existence through speaking with another resident.

I understand regards the communal area/blocking etc. I only left the vehicle there to gain a PCN from my space and outside the space, to then go via POPLA and show it was unenforceable, with the expectation that the MA would then see sense. It started out as a logical idea, but the MA isn't budging no matter what is thrown at them.

The four PCN's they are now claiming, were all issued within 8 days, to the vehicle which had been parked there before this PPC were engaged at the site, and the vehicle didn't come and go during those 8 days, it didn't move. After receiving the NTK letters, and updating this thread, I moved it so as not to continue collecting more.