PCN - parking in my own space

nasescoba1985

Well like I said I’m going to speak to the Chairman of our association tomorrow and he has read the lease pretty much back to front, so he will be of much better knowledge than me. Thanks:

nosferatu1001

It would still be good to see it. You may have missed something. These documents need to be read carefully - you cannot skip over a single full stop or comma.

nasescoba1985

Yeh definitely. I will go through it myself for sure. Just a quick question, if the lease has nothing of any sort that gives the management company permission to change the common areas etc, the parking company have no leg to stand on? As surely this would be breach of lease and changing/altering the primacy of contract, which is illegal.

nosferatu1001

It isn’t “illegal” in the criminal sense. The MA or whoever employed the PPC AND the ppc are both liable for tortious interference with the lease.

drh90

Hi nasescoba1985,

Just popped in to give you my thoughts, as requested on my thread from a few days ago (the similar case).

My case had marked differences, in that I had proof that my Management Company had messed up the allocating of our Permits, so I would have been able to claim that the displaying of a permit was an impossible ask. This, coupled with my lease would have likely been a cinch to win in court (if it had come to it). In my IAS appeal I also included photocopies of the relevant sections of my lease, showing that I held leasehold title over the designated bay that I was parked in, and therefore that there was never any 'contract' formed between myself and Link Parking because the freeholder had already given me that right in my lease and I had never agreed to any such change.

In my lease I had a term which implies that they are able to make changes to the lease for the benefit of the residents - however I stamped on that by rejecting the notion that this clause allows them to impose a contract onto residents with a 3rd party (the PPC).

I also uploaded various PDF files of cases that had gone to county court and been won by residents (such as Pace v Mr. N) which, in my mind at least, showed them that I was serious about seeing the matter through to the end if needed (why else would I be researching case law).

The !!!!-up with my permit also meant that I was able to put pressure on the Management Company to get Link (and the IAS) to cancel the PCN. Yours is slightly different in that I doubt your landlord will be as kind, given that it was not his error that caused the lack of permit being displayed. However you could still try and pressure him to intervene, going down the route of a formal complaint to him about him not upholding terms of the lease agreement.

As the guys above have said, there is plenty of case law around the site (and on various websites) that strongly backs residential cases when heard by a 'proper' legally qualified person, such as a judge, rather than the moronic and/or biased IAS adjudicators. So if you have no success with the landlord, sit tight and await your court papers if they have the stones to take you to court.

In the meantime, start reading up on the court processes on the forum, so that you can act with confidence and pace if they end up taking it to court.

In case you are interested - please see below for the letter I sent to my Management Company. I have redacted the sections naming the Management, Freeholders and Block Addresses.

I am writing with reference to an issue at (ADDRESS) which is a block of apartments managed by your Bristol office.

Currently this site is owned by (FREEHOLDER) with asset management performed on their behalf by (FREEHOLDER'S ASSET MANAGER). Previously this site was owned by (DEVELOPER) who built the apartment block and who are co-signees to our our lease document.

Background

• I received correspondence from your Bristol office on the 13th September 2017, inviting me to take part in a vote on whether some form of Parking Management should be implemented on site, with the intention of tackling some isolated issues of inconsiderate parking. Initially residents were keen to use Parking bollards in spaces instead, however this was rejected because of a health and safety concern held by (MANAGEMENT COMPANY).
  
• On the 26th of September, I received a further letter stating that 24 residents across the 36 apartments had subsequently voted in favour of implementing some form of Parking Management system. Therefore Link Parking would begin patrols from the 4th December onwards on the site. Residents would be receiving a hand-delivered permit through their letterbox and signage would be put up to tackle the issue of non-resident and inconsiderate parking.
  
• On the 31st of October, I received a further letter through the post, stating “Please find enclosed your visitors permit. We will be hand delivering your permit through the letter box of your apartment”.

Some key words here to point out are “visitors permit” and “hand-delivered". As we are not ‘visitors', we are residents, these letters have been wholly misleading, with many residents confused by the terminology used. Nor were the permits hand-delivered as stated, they were instead posted. The misleading statements in these letters have caused an issue now where many residents were not aware of the requirement to display this ‘visitors’ permit, as they were still awaiting a further residents permit. I would also like to point out that these letters are also contrary to Section 9, of the leasehold agreement that all (BLOCK) residents have, that gives us leasehold title to our properties and a designated parking space on the site. The clause in my lease states that I have:

"The exclusive right to use Parking Space (PARKING SPACE NUMBER) for the purpose of parking a single fully taxed and licensed private motor car or motor cycle in a roadworthy condition capable of being parked wholly within the boundaries of the Parking Space STRICTLY PROVIDED THAT the Lessor shall have the right to vary the position of the Parking Space during the construction of the Development and at any time thereafter subject to any alternative Parking Space being within the Development."

On the 2nd of December 2017, I returned home from work and parked my car as normal in my designated space, exactly as I am permitted to do by the term above. However, having not used my car for a period of seven days, whilst away from the property, I returned home on the 7th December to find that I had been issued with a Parking Charge Notice by Link Parking, for being parked without displaying a permit. When I contacted Link Parking to explain the situation and appeal the ticket on the grounds that I was a resident and parked correctly in my bay in accordance with my lease, I was met with a blunt response that my lease was irrelevant and that I “had accepted the Link Parking terms and conditions by parking on the site”. They went on to claim that by parking on the site I had entered into a contract with them, and was therefore required to pay a £100 charge as I had failed to display a permit, which was a term of that contract.

However at no stage have I ever agreed to any form of contract with Link Parking. When I parked my car on the 2nd December, I was doing so in the knowledge that I had leasehold title to the parking space and was therefore able to use the space to park my vehicle in, in accordance with the term above. Under the legal principle of Primacy of Contract, terms of an agreement are unable to be altered without the consent of both parties. Therefore as I have never agreed to a change in the terms of my lease that allows Link Parking to trespass onto my parking space and subsequently impose on me a requirement to display a permit to park in my space, or alternatively pay a £100 charge, I am able to say with certainty that they are not acting lawfully in affixing this PCN to my car.

Section 7.3 of my lease states “The Management Company shall have the power to make and at any time vary such development regulations as it may think fit for the preservation of the amenities of the Development or for the general convenience of the occupiers of the dwellings”.
If we assume therefore that (MANAGEMENT COMPANY) had the ‘convenience' of the residents in mind when introducing Link Parking to the site, then it is also a fair assumption that to ensure that residents are not ‘inconvenienced’ by such new regulations, (MANAGEMENT COMPANY) would also take direct involvement in mediating any erroneous action that might be taken by the Parking company (for example Link Parkin providing a Parking Charge Notice to a resident parked correctly in their designated space).

However in my case, this mediation from (MANAGEMENT COMPANY) has been non-existent, despite my attempts to attain such support. Nothing in the term above, section 7.3, allows (MANAGEMENT COMPANY) to absolve the Freeholder of their obligation to allow me to park in my designated space. Nor does the term allow (MANAGEMENT COMPANY), or indeed the Freeholder, the right to impose on residents a contractual agreement between residents and an external parking management company, Link Parking, for utilising said designated space from the pre-existing agreement. Until the lease is otherwise expired, or a replacement lease is signed, use of the site (and therefore the designated parking spaces) remains an obligation on the freeholder to provide to the leaseholder. Restricting residents rights to be able to park without restriction is a breach of that lease agreement.

For the legal context of this matter, I refer you to the county court ruling in Pace v Mr. N (please see case notes attached below). In Section A of the case, District Judge Coonan ruled on a similar residential parking case. He ruled in this instance that a Parking Company cannot restrict the right of tenants to be able to park, by imposing a requirement for a permit.

Applying that decision to my own case; whether I was displaying a permit or not, due to my prior agreement with the freeholder of the land, I was quite justified in being parked in my designated space on the 7th December. Whilst Link Parking must be commended for having very informative signs displayed, those signs cannot lawfully override a contractual agreement that is already in place with the freeholder. It is therefore reasonably assumed that I did not enter into a contract with Link Parking on the 7th December.

I have made it clear to Link Parking that I am refusing to pay the £100 PCN because it is not a lawful charge. I have demonstrated this evidence to them, exactly as I have just demonstrated it to you. I have gone on to inform Link Parking that if they wish to obtain payment for this £100 charge, they must take the matter to the County Courts to prove that I owe this debt. On the basis of the evidence that I have provided to you today, in addition to numerous other examples of prior case law relating to residential parking, I am sure you will agree that they are unlikely to have the support of the courts in obtaining a judgment against me for this payment.

To avoid the inconvenience and loss of time and earnings that a court-date would necessitate, my expectation now is that (MANAGEMENT COMPANY), on behalf of the Freeholder, upholds the terms of the lease agreement and requests that Link Parking cancels the PCN charge given to me with immediate effect. My expectation is that (MANAGEMENT COMPANY) also inform Link Parking that their invitation to enter into my designated space has now been withdrawn. This is legally justified on the basis of me being the leasehold title owner to the space, and not wanting them on or near my land or property. For them to continue to enter into my designated parking space in future, will result in me bringing a trespass and a subsequent claim for damages through the courts.

Please see attached below a wealth of evidence that you may wish to consider, prior to your response. Specifically, but not limited to:

Relevant sections of my lease agreement.
Designated site plan
County Court Case (PACE v Mr. N)- where a similar residential case has gone through the courts.

I look forward to your reply.

Coupon-mad

You never know, UKCPM might not contest the IAS case. Wait and see. Just because we (forum consensus) don't recommend trying, doesn't mean absolutely no-one wins at the IAS, because a few do.

Part of the reason I never recommend the IAS is that losing is soooo common and then we get the posters bleating that they lost, thinking they suddenly have no case, and do they have to pay now? YAWN! But you don't sound like that person, so trying IAS with your eyes open is a reasonable thing to do. You sound like you will take a 'no' decision with the pinch of salt it deserves. Good.

Please don't come back crying if IAS is lost as I have faith in you and it's a big fat 'so what' if it happens!

And what you said about your lease today, and the information letter from 2015 confirming that the car park was not restricted and no permit was necessary, adds up to a nice little set of evidence IMHO, now we know all that.

IamEmanresu was just keen to warn you of the difference between Link v Blaney (a loss, where a lay rep was used, something I consider - normally - pointless, expensive and possibly even detrimental to a case, but that's another story) and a win with Link v Parkinson. Have you gone to the BMPA website or the Parking Prankster's case law pages and read the actual Transcripts of the Judge's decisions and why each one went in opposite directions?

You should read both, carefully. It will help you and the fellow residents in your fight. You need to kick the PPC out.

nasescoba1985

Thanks guys. Both of you are really helpful. Yes you are correct , let’s wait and see wether uk CPM contest the ISA case or not. Who knows with a bit of luck they might not. If they do, then I’ll comtinue to follow advice and ignore them from now on: Once I get the court papers, I’ll come back on. In the meantime I’ll gather as much evidence and bits to fight my case as I can. Thanks.

Coupon-mad

Wonder how many residents are facing the same threat, or have paid money they don't owe, to these ex-clampers?

nasescoba1985

Oh and guys, I did try go down the property management route. I emailed the property manager, the guy that initially introduced this parking company and started this “feud “ as such with us owners/remnants.

I emailed him basically stating my case and to see if he could intervene as he knows this space is allocated to me. His response was that his managemt company don’t profit or make any money from uk CPM, so he advises me to go to court if I feel I could win and that he couldn’t influence anything. Basically he’s about as useful as a chocolate teapot.

nasescoba1985

1 resident has got 3 tickets already and has refused to pay all 3. Another resident got 2. He paid 1 ( stupidly ) and contested the other, in which he managed to get it overturned surprisingly.