Gladstones CCC - UKCPM

Loadsofchildren123

Have a look at post 13, it's on point.


Can we go back to basics here? I haven't gone back over the full thread, but some of it, and I'm confused about the facts (I comment on/follow a few threads):


1. Are you a tenant or a leaseholder? If tenant, I think you should refer to your rights under the tenancy rather than the lease (this is confusing as it implies you are a leaseholder).


2. Are you in breach of your covenants regarding parking? I think you posted at the start that you were because your rights/covenants are to park in the residents' spaces, not the visitor spaces.


3. You then said that this was immaterial as against the landlord/Managing Agent because they had no right to recover a penalty for any breach, and as against the PPC because the V area of the car park was not signed and there were therefore no parking restrictions on that part of the car park and can have been no contract formed.


4. However, now you have found a covenant which says that they (freeholder/MA) do have a right to recover costs and expenses of enforcing/remedying your breaches. However, that right is theirs, and it's their costs/expenses - not the PPC's.


5. However, this leaves the statement that they aren't entitled to recover a penalty slightly askew. it is still factually correct that they aren't entitled to recover a penalty, but they are entitled to force you to comply and to recover their costs and expenses of doing so. You would say that these were not the costs/expenses of the PPC and it's for the F/H or the MA to pursue you for a breach (back to post #13).


I'm just worried that you're starting from the standpoint of being in breach of your parking rights so your argument about primacy of your tenancy/leasehold rights is slightly less attractive than it would be if you had been correctly parked. However, you still have the argument that this breach is for the landlord/freeholder/MA to enforce, the PPC is not a party to the agreement and has no locus to sue you under it - and they are pursuing you for a charge, not for the cost of forcing you to comply with a covenant.


Is this making sense?

Loadsofchildren123

Sorry, I've made two similar posts. I pressed something and thought my first draft had been lost, but now I see it posted.


I'm sure you get the drift of what I'm trying to say.

AOneVS

Hi LoC, I appreciate the facts can get lost with so many parking threads, each with their own differences.

Here are some facts on where I'm coming from:

• I own a leasehold house.
• It has 1 private parking space and a single garage.
• There are 3 visitors spaces next to the private space.
• My wife's car parks in the private space as it's too big for the garage.
• My car fit's in the garage but the visitors spaces are used occasionally.
• No parking permits are required by anyone on the estate.

The parking terms in the lease are as follows:

Tenants Covenants 1 - 3.19 Not to use the Visitors Parking Spaces other than for the temporary parking of vehicles belonging to visitors attending at the Property.

and

The Second Schedule - Rights Granted to the Tenant - 1.6 To permit visitors to the Property to use the Visitors Parking Spaces on a first come first served basis.

Let me know if you need anything else.

AOneVS

Missed both of those while adding my last post! Will have a look...

Loadsofchildren123

This is difficult one.


On the one hand, the focus of your argument should be on the fact that this is the wrong Claimant if it is claimed that you were wrongly parked (and it's difficult for you to argue you weren't because you're a leaseholder not a visitor). Those rights are for the f/h or MA to enforce (and they have the right to do that and to recover their costs/expenses).


But then won't the PPC say they are acting as F/H/MA's agent and therefore entitled to recover the costs/expenses (but then what about the charge itself)?


On the other hand, you want to argue that you had no contract with the PPC and they have no contractual right to be suing you. They are not claiming rights as agent under the lease, they are claiming that you entered into a contract with them. In this regard, you are saying that the signage was insufficient in relation to the V spaces.


Both are arguable points, but I just don't think 1 sits well with 2 because you are starting off admitting you were wrongly parked under the lease- the judge may have some sympathy with the PPC which has been brought in to regulate unauthorised parking (which yours seems to have been under your lease). Yes you can argue the contract point (no signage about V spaces therefore no contractual terms regarding them) but I'm just a bit worried that given the lease point the judge starts off thinking you've done something wrong.


What do others think?

safarmuk

I agree this is indeed a tricky one for many reasons such as:

But then won't the PPC say they are acting as F/H/MA's agent and therefore entitled to recover the costs/expenses (but then what about the charge itself)?

It can be argued that £60 is not a cost to either the Landowner or Management Agent, so, I agree, what is the PPC recovering? The lease appears to make no mention of the cost of the breach of the covenant.

Also the PPC is using the signage as their contract with the driver, not the lease. So again the signage is not the same as the lease and the "infringement" is completely different. CPM have ticketed for an overstay as opposed to for actually using the space against the terms of the lease.

Is this a warden patrolled area or are UK CPM using self-ticketing residents?

AOneVS

safarmuk wrote: »

Is this a warden patrolled area or are UK CPM using self-ticketing residents?

It's entirely random when they turn up. I've seen cars parked in the visitors bay's for days without a ticket. They do seem to be CPM staff though, wearing CPM branded uniform.

Just to add, they're in the process of changing the signs again, this time to official IPC ones. The only one they've changed so far is the one at the entrance of the visitors' parking area (referenced Exhibit 6a\b\c on WS). Can you believe they've removed the visitors' parking terms from this new sign! :rotfl:

AOneVS

I've uploaded a copy of the lease (redacted) if anyone want's to take a look.

https://drive.google.com/file/d/0B2SDl3TzvjSyZHNQM19Zdk1XTExlUUM2LW9jS3gxR1U0Y0dr/view?usp=drivesdk

AOneVS

In light of the last few posts, is there anything I can add to point 4 in the witness statement?

I think it would be useful to mention that the reason stated on the PCN was overstay, when this isn't mentioned in any terms in the lease.

To recap point 4 currently states:

[FONT=&quot]

[FONT="]4. My vehicle received a Notice to Driver on xth xxx 2016, PCN number nnnnnn (Exhibit 3). The vehicle was parked on a private estate. The lease, dated 15th April 2011 (Exhibit 4) does not contain any right for the freeholder to recover any set penalty if the leaseholder parking terms are breached. [/FONT]If the freeholder is not entitled to impose and recover a set penalty, then it cannot have granted this right to the Claimant and the Claimant cannot exercise it. [FONT="]According to the Managing Agent, parking control was introduced in 2013. There has been no variance to the terms of the lease.[/FONT]

[/FONT]

Loadsofchildren123

Yes, I think bring the focus more onto the overstay - so they must accept that you had a right to park in the first place for there to have been an "overstay", which is interesting.


Emphasise that it is their claim, so their burden of proof and you fail to understand what the overstay was.


I think you must focus on this to avoid them saying "the overstay description was a mistake, actually he had no right to park at all" - you want to hammer the point home so that they can't say this and morph their claim into something else (which they will try when they realise the mistake).