New parking regulations at home...

Loadsofchildren123

Managing Agent is defined in the interpretations clause as “such agents as may be employed from time to time by the Lessor for the management of the Estate….”
There is frequent reference in the lease to “agents” of the landowner, but only one specific reference to the “Managing Agent” which is in para 1 of the 3rd schedule where it specifically says the MA may be appointed to collect ground rent/service charge.Eg "agents" are mentioned in para 2 of Sched 2 and para 14/15 of Sched 3 – the landlord’s power of entry to repair, maintain, inspect etc includes its agents and Lessee’s obligation to allow them entry
The clause about introducing further regs is at 5.4 – “the Lessor may at any time or times…in the interests of good estate management impose such regulations of general application regarding the Building or the flats or the parking spaces and the Communal Areas therein as it may in its absolute discretion think fit in addition to or in place of the Regulations…..”
It doesn't say in this clause that it may use agents to introduce new regulations


In hairray's case there was a Deed signed at the same time as the lease to which the management company was a party which gave it rights and powers/obliged it to observe the covenants. In this case the MA is party to nothing.


In the case of residents setting up a RTM, isn't the RTM the landowner's agent under the lease, because it takes over the obligations/rights and effectively exercises them under the terms of the lease as the landowner's agent? So acting as the landowner's agent they are employing further agents (which I would say is allowed). Or does a RTM company have a different status? My understanding is the RTM is a way of forcing the landowner to allow the RTM to take over its the rights/obligations. After this has occurred, is the RTM's status as agent of the landowner, or is it exercising the rights/obligations in its own right (ie it steps into the landowner's shoes) - if the latter, then it is entitled to employ agents in the same way the landowner was (and if the former it does so as landowner's agent). I think under the Commonhold and Leasehold Reform Act (which "invented" RTMs) the RTM assumes all the obligaitons/rights in its own right (ie not as landowner's agent). Therefore it isn't the landowner who has the sole right to bring in agents (eg PPCs) but the RTM.


But then the PPC can only be brought in as AGENT, not be granted rights to act independently. This calls into question whether the RTM can validly grant the PPC rights such as the right to sue drivers. I say it can't. The RTM can only acquire the rights/obligations from the lease, it can't invent new ones - it can exercise the power to impose new regulations but it can't create contractual relations with its agents.


I'm not a property expert, although I have enough knowledge and experience to read and interpret a lease.


I don't think the RTM is taking control of the land, it's simply exercising the rights and obligations it has acquired which are contained in the lease. I think the RTM is entitled to exercise the rights contained in the lease and that includes employing its own agents.

Daniel_san

Apologies for the very late reply. Thank you LOC, I really appreciate your input.

FYI, I sent my letter to Gladstones, which they would have received within their 14 days deadline. I am now awaiting their response. In the meantime (FYI), I've had 2 more letters from "Trace" debt recovery, with regards to 2 PCN's for a vehicle in my own space.

My understanding of RTM is to allow residents to take control of how the building is managed. With the correct qualifications / ability to satisfy regulations, Directors could effectively manage the building themselves and thus save money; or they can choose to appoint a MA, but the important part is more control.

I would expect that those rights extend to, but not beyond, the terms and requirements of the lease - cleaning contracts, maintenance works, light bulb replacement, lift repairs, TV/Sky aerial/dish, accounting etc etc.

The land owner surely retains absolute right over the land, and so in the absence of any mention of a PPC and any requirement to display a permit, along with an absence of details of any penalty for failing to adhere to such requirements, such a scheme cannot be introduced without a change to the lease? and ultimately the land owner must contract with the PPC to allow them to establish themselves as the claimant?

I hold little hope that the claimant will follow the Protocol and provide me with the information as required....I will of course update when I receive further communication.

Again, apologies for the lack of reply until now.

safarmuk

I would expect that those rights extend to, but not beyond, the terms and requirements of the lease - cleaning contracts, maintenance works, light bulb replacement, lift repairs, TV/Sky aerial/dish, accounting etc etc.

The land owner surely retains absolute right over the land,

Why don't you write to the Directors of "Theowal Ltd" at their correspondence address (35 Park Lane)
https://beta.companieshouse.gov.uk/company/06570726/officers

And/or phone up Molteno House (the Regents Park Road office) and ask to speak to someone from "Theowal Ltd" or the Directors by name (I would copy the letters above here as well)

In the letters and phone call tell them you are looking for the status of the land ownership and rights relating to your estate. Tell them you are currently about to enter into legal proceedings related to that estate you need to establish the facts and their information is pertinent ... if they don't play ball then I am sure there is some way to force them to reveal such pertinent information (others will know better but there must be a way to formally request this information).

Daniel_san

Update: I'm chasing E&M and am assured someone will call me today to update me. I am told someone is "dealing with it" now and have advised them that I will require their response in writing, but an update by telephone would be great at this stage.

Nothing from Gladstones as yet...

safarmuk

Hey Dan, would be very interested to know who you are speaking to at E&M if you can PM me.

A quick search on LinkedIn of that person or E&M in general will tell you who someone is and what position they hold (so you can see how high up you have gone).

E&M are essentially the representative for the same Freeholders for a large number of estates in the UK (each estate appears to have a separate Ltd. Co but the same Directors) as far as I can tell. You might like to point out to E&M when you speak to them that this scam is being exercised (wittingly or unwittingly) by their appointed MA's on several of their estates and that they would do well to start understanding this better and telling their MAs to get this under control before their directors end up on the receiving end of litigation from one or more very angry flat owners.

Daniel_san

Hi, at the moment I'm waiting for a call from "Emma", who I suspect isn't very high up, but as and when I get that call, I'll see if I have a surname. Certainly it should be on an email when that eventually arrives. I'll be sure to PM you when I have that info. Thanks

Yes understood, and I totally agree, it's a widespread issue now and landowners need to get a better handle on it.

Almost 4 weeks now without a response from Gladstones....maybe their client is gathering all the information required to comply with the Protocol....

Rheebs25_2

I am curious to know if you have received any further letters in your response to their LBC etc?

Daniel_san

Hi, good timing! I was meaning to update....

I've received nothing following my reply to their LBC.
I have received an additional letter from Gladstones though, regarding 2 further PCN's, for vehicles parked in my own allocated space.
Only one further PCN is outstanding, but as I only ever received one letter about that, and no follow up debt collection letters etc, I assume they cancelled that one, although I have the letter they sent, which shows their photo evidence, that could only have been obtained when standing in my allocated space, so I have that one in my pocket as trespass too!

Incidentally, my neighbour has owned his flat since new as I have, but rented it all this time, has now moved in and he got a PCN about 4 months ago, his vehicle, his space.....he challenged it, even went to court, and lost! Grrrrr! So he's now paid 2 of these things already! He's educated better now for sure! What a shame!

Daniel_san

Update:

2 letters from Gladstones.

1: In reply to my letter to their LBC. They point out that the new Protocol only applies when the LBC is issued after 1st October 2017. They then state that as I had acknowledged their LBC before 1st October, it doesn't apply. Apparently, "therefore, the debt owed" remains outstanding. They fail to provide anything further though, specifically the below points 1-9 were requested to support their clients claim, which, even if the Protocol information is correct, they still have to comply with pre practice action?
1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature. Or is the claim for trespass? If so, provide details.
6. a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. Details of the additions to the original charge, what that represents and how it has been calculated.

A copy of the body of their letter is here FYI
https://www.dropbox.com/s/dtd7hm6f0b9jmtw/gladstones-lbc-2nd-letter.JPG?dl=0

and a 2nd letter, relating to 2 further PPC's issued to a vehicle parked in my allocated space, which were the usual £100 each, but they're attempting to claim for £320 now. This I know is much simpler to argue - trespass, DPA breach x2, well, x3 in fact, as I have a 3rd letter which they've never followed up on, but their photo evidence shows their "ticket" person took the photo from inside my parking space.

Lastly, I've chased and chased my landlord, E&M, who keep telling me Emma is dealing with this, but unavailable, on the phone, in a meeting, and never, ever, calls me back, or emails me to respond to my letter. It's been about 8 weeks now.

Would appreciate advice on the best course of action from here please?
Reply to Gladstones, acknowledge their letter and point out that they still failed to provide any of the information I requested to fully understand their clients position and cause of action. Maybe with special mention of the requirement of the contract between land owner and their client, which doesn't seem to exist?
In addition to the above, reply to their 2nd letter, with my own LBC regards to trespass and DPA breach; providing evidence to support my position: No requirement for permit in my lease, lease allows unfettered rights to use the parking space, no contract between myself and PPC, no contract between PPC and landowner?
Write to my landlord (E&M) again also, copying the latest letters to them and advising that their lack of reply constitutes a willing breach of my lease for which they may have liability?
Something else?

Appreciate any and all advice as always. Thank you.

Daniel_san

Bump.....any words of wisdom? or should I just let them file paperwork, as they'll eventually do that anyway without bothering to provide me any of the information I requested.