Help with TWO PCNs in Own Space in Private Residential Car Park

Coupon-mad

DevereauxMcGill wrote: »

The AST says nothing at all about parking, unfortunately.

Only section 4.2 - That the Tenant paying the Rent and performing the agreements on the part of the Tenant may quietly possess and enjoy the Property during the Term without any unlawful interruption from the Landlord or his agent.

...but this is really only about the flat itself, so I doubt there will be any comeback.

Sounds good to me. I don't read that as only referring to the flat itself. But I think you need more; your Landlord should have a stronger granted rights stated in his leasehold title documents that would help you even more.

However as you are a tenant I would drop wording like this:

on land which you have no legitimate interest in, and have not sought approval for the use of from the actual landholder, ie myself. Therefore you have trespassed on my leased land.

Because you can't really describe it as 'my leased land' and that wording allows them to come back and say 'we do have an interest granted by the managing agent'.

I agree with this from safarmuk:

I would suggest you contact your landlord, if you have been there 7 years he won't want to lose you. Tell him that it is not acceptable that you are hassled in this way.

Ask him who the Management Agent (who he pays maintenance to) is and who the Freeholder (who he pays Ground Rent to) is. Ask him to check his original Lease and to complain about this scheme alongside you. Tell him that the entity that instructed the PPC (most likely the MA) is very likely breaching his Lease and in turn breaching your AST.

In essence by signing an AST with you he has passed his Lease rights onto you and specifically your allocated space. Nowhere did you accept the risk of having to pay an additional £40/pop to a third party who have just shown up in the event a bit of paper is not on your dashboard or windscreen.

Totally agree. Much depends on the right in the individual flat-owner Landlord's lease and he/she might even own the bay or have paperwork showing 'unfettered use' that will assist you.

I wrote a defence for a person from MSE last month who was a tenant and when he asked his landlord, it turned out his landlord flat-owner actually fully owned the parking space as well, under a Deed. So the MA had no business letting the PPC loose in that owned bay...that defence was fun to write and so will the claim, if he chooses to make a claim against the PPC and MA afterwards.

DevereauxMcGill

Thanks Coupon-mad. I will drop/alter the line you hilighted. And thanks to safarmuk and everyone else who have offered advice.

The first ticket appeal is due tomorrow (day 26) so I'll need to settle on something quickly.

As it happens we're moving out of the flat anyway in a couple of weeks. But we're on good terms with our landlord so will write to him with the details and ask him to check his terms. Regarding the move, I will need to send my current address (i.e. the keeper's address) with my appeal email. I should then write to them once we move with our new address, right?

I'll let you know how the appeal goes.

Umkomaas

Keep the PPC informed of any change of address (for the next 6 years if this remains unresolved) to ensure that any court proceedings letters are not sent to a former address which are not forwarded to you, which will potentially trigger a default judgment and CCJ, trashing your credit rating.

DevereauxMcGill

Here is my edited appeal text, after removing any reference to "my land", and reordering a bit to keep the original template appeal text apart from the extra stuff about the lease.

Dear Sirs

Re: PCN No. .....

I challenge this 'PCN' as keeper of the car.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

In addition, I would also like to draw your attention to Section 10 Notice under DPA, that you should not obtain further data about this VRN because I have the primacy of contract as leaseholder. Should you obtain the registered keeper's data from the DVLA without reasonable cause (e.g. if you do not fully comply with the BPA Code of Practice in terms of signage at this site, for example) please take this as formal notice that I reserve the right to sue your company and the landowner/principal in your contract, for a sum not less than £250 for any Data Protection Act breach.

For the avoidance of doubt, I do not give you consent to process data from the DVLA relating to this vehicle, whether you have already obtained it or not.

Your PCN draws to my attention that you are using my designated car parking area for your own business purposes. My lease allows unfettered occupational rights to the parking bay in which the car was parked when the PCN was issued.

Your involvement on this land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders and their invited guests. In any case, my lease makes no restrictions to the use of the parking facilities. My lease remains the same as it was when it was originally signed which means you are acting unlawfully and without the leaseholder's consent. If you feel that you have been misled by the Managing Agents insofar as they have contracted with you to operate here, then that is something you must take up with them directly. It is of little interest to me as I have unequivocal unfettered right of peaceful enjoyment of my allocated parking space.

You will know that you cannot add a requirement for residents to now display permits (and foist onerous parking charges on my ground) because access rights and easements allowing vehicle and parking were already granted under the lease.

May I draw your attention to the following case: Jopson v Homeguard , case 2906J in Oxford County Court where the appeal heard by his honour Judge Harris QC. This was an appeal against a previous hearing which was awarded in favour of Homeguard, in similar circumstances as those addressed in my dispute with you. The Judge allowed the appeal in favour of Mrs Jopson.

As you have seen fit to attempt to charge me the sum of £80 as a legitimate amount for the use of my own leased property, I hereby claim the exact same amount from you for your trespass and business use on my allocated parking space.

To prevent this matter being taken to court I require payment within 14 working days from 2 days of the date of this letter. Failure of this may result in a court claim being instigated and consequential separate costs being added for the added expense.

I have kept proof of submission of this appeal and look forward to your reply.

Yours sincerely,

DevereauxMcGill

So, I've had responses to my two appeals from NSGL and they're, oddly, different.

The first response, to the first ticket appeal, was "allowed". I take this to mean that the charge has been dropped (there was no POPLA code or info).

The second response, to the second ticket appeal, was rejected (and included a POPLA code).

What could their thinking be? Both appeals were identical. Surely they should either allow both appeals, or reject them both. I can only assume that they're angling to get paid since now there's only the one charge, which would be more attractive to me than two charges?

Incidentally they wrote "Thank you for you appeal, which appears to have been cut and pasted entirely from the internet". Not quite true...

If it helps I can copy and paste their full responses here, just in case I've interpreted anything incorrectly.

As the first was allowed then I'm hoping it puts me in a good place when it comes to the POPLA appeal. I'll need to read the POPLA post in more detail before I appeal. BTW, I have not received a NTK letter in the post for either PCN.

Coupon-mad

What could their thinking be?

These firms don't think, this is merely the lottery regarding which computerised letter young Demi-Mae-Chardonnay (or whatever her name is) who 'works' for a parking firm (for want of a proper job) decided to send for each one. She hasn't even read your appeals or realised they were from the same person. She hits the 'computer says no' button usually but maybe fancied a change for one of yours.

Glad to hear no NTK has arrived, that hands you a slam dunk winning POPLA appeal that Demi-Mae-Chardonnay will never understand.

DevereauxMcGill

Just in case anyone's interested, here is their reply to the "allowed" appeal. As they addressed the points I made in my "entirely cut and pasted" appeals it looks like they did read them through. How bizarre then, that they allowed one and rejected the other!

Further to your appeal received on 26/01/2017 regarding the above Parking Charge Notice.

Having reviewed the evidence provided and taken into account your comments the appeal is allowed.

Thank you for your appeal, which appears to have been cut and pasted entirely from the internet. We would like to point out that we have been invited to enforce the rules of parking on your site, to ensure that the residents can enjoy the parking provision provided within their leases. In that respect, we request that residents display permits, so we know who is entitled to park on the land and who we need to discourage from abusing the site.

To address your individual points:

1. Our signage is audited by the BPA’s Approved Operator Scheme, and we are happy to test this in Court
2. We have been engaged by the managing agent to manage the site and are happy to produce the agreement if required in evidence by the County Court

3. We would rely on Schedule 4 of PoFA and issue a POPLA verification code in all appeals.

4. As you have provided your details we do not need to access DVLA data

5. Our PCN does not state that we are using the site for our own business purposes, please ask the author of the internet post to explain how they deduce that

6. We are working with the landowner to protect the unfettered rights of the leaseholders, however we cannot do that if the leaseholder’s are not prepared to display a permit to prove they have a right to park there. As you are not prepared to display a permit, our only recourse
is to request a copy of the lease, we are happy to ask a County Court Judge to request this

7. The case of Jopson v Homeguard, is persuasive, however, it does not set a precedent, similar cases have gone in favour of the landowner and car parking operator

8. You would be entitled to take whatever action you see fit in the County Court, you will need
conclusive evidence to prove the case

The points made above are identical in the rejected appeal. The only difference is:

Our records show that the notice was correctly issued as your vehicle was parked in breach of the Terms and Conditions of Parking, for the second time, therefore your appeal has been rejected.

which is laughable as the second ticket was issued just two days after the first, over the new year period, when it's quite reasonable to not use your car for a few days. Anyway, thanks for Demi-Mae-Chardonnay; If I have any more kids I'll no longer struggle to find a suitable name :rotfl:

Coupon-mad

Not sure a boy would be happy with that name in Secondary school!

Anyway the PPC said:

As you have provided your details we do not need to access DVLA data

Haha, and that will be their downfall because if they want to hold a registered keeper liable, they MUST obtain that data from the DVLA ONLY and they then MUST serve a Notice to Keeper, compliant with para 8 of Schedule 4 of the POFA, by day 57. So, time a POPLA appeal past day 57 after the PCN date, with the first point being the one about no NTK being served, and you have them!

safarmuk

Have you considered telling your landlord that you don't want your allocated bay monitored any more and that he/she needs to tell the MA that who should then confirm this in writing to you and the PPC?
Worth a try to avoid future hassle. I mean seriously, gated complex ... who else is going to park in your bay?

DevereauxMcGill

Have you considered telling your landlord that you don't want your allocated bay monitored any more

We've moved out now, so it's not an ongoing issue anymore. He's aware that I got the tickets, and I told him to raise it with the MA. The PPC know my new address and I will appeal to POPLA in due course.