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Lbc for parking in my own bay
Comments
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Well, you may (I say may) be criticised for not having warned them of the trespass claim before now. However, neither can you be expected to take the time to warn them and lose the opportunity to make a counterclaim.
You've identified yourself as driver in the appeal, so you may have to explain this if they draw attention to it. You can just say that the box saying driver was ticked by default (which it usually is in these appeals). Aside from that you can say it's a shared car and although you weren't driving you ticked that box because you didn't realise the significance, you just thought sense would prevail and in fact thought you'd be in a stronger position if you said you were driving.
If you want to include the counterclaim, then include it and write straight away to the Claimant/C's solicitors once you've filed the defence (not sure if there are solicitors or not):
Dear Sirs
I have today filed my defence, with a counterclaim for damages for trespass and an injunction. I enclose a copy.
As you will already know, it is my case that the parking space in which my car was parked on the relevant date was demised to me under my lease in respect of [address]. I have exclusive rights to it as a leaseholder. I may park there myself, or allow others to do so, provided this is in accordance with the terms of the lease. The freeholder, who I understand has contracted with you to operate in the carpark, had no right to contract with you in any terms and had no right to introduce any further conditions or terms concerning my pre-existing rights to use my parking space. Whilst the Management Company (not the freeholder) has the right to introduce new "Estate Regulations", these are defined so that they do not include the car park, but only other areas of the development. Furthermore, the lease contains a specific provision that its terms may not be enforced by a third party (ie you/your client).
Neither the freeholder, Management Company, nor you [or your client] cannot therefore impose terms on my use of my parking space, other than what is in the lease. And if there were any right to do so, it could not be enforced by a third party (ie you/your client).
You therefore have [or your client has] absolutely no right to restrict or impose new conditions on my use of my parking space, or to enforce them. The lease is quite clear on this. Therefore, every time your [client's] operatives set foot on my space is a trespass. Every time they put a PCN on my vehicle is a trespass.
You will note that I have included a counterclaim for trespass in my defence. I had no opportunity to write to you about that before now because it was not until you issued proceedings that I took legal advice and understood that you/your client was trespassing. I invite you/your client to undertake not to enter my parking space again, nor to commit any act of trespass to any vehicle parked in it.
Please also be aware/inform your client that if I choose to display a permit on my vehicle, or in any other vehicle legitimately parked in my space, that is not an acceptance of any right on your/your client's part to enter onto it. Likewise, if I choose not to display a permit, that does not give your client any authority to commit further acts of trespass. Nor does it signify any acceptance on my part of any right on your/your client's part to enforce the terms it has purported to impose upon me in respect of my right to use the parking space.
Since the terms of the lease are quite clear, I require you/your client to withdraw its claim and await its/your proposals in relation to the matter of the trespass.
Yours faithfullyAlthough a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Just seen your last post, the trespass claim is really to pressurise them to settle. If you win it you'd get the £25 back. But I understand your reasoning for not wanting to complicate things and spend more money.Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0
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Loadsofchildren123 wrote: »Just seen your last post, the trespass claim is really to pressurise them to settle. If you win it you'd get the £25 back. But I understand your reasoning for not wanting to complicate things and spend more money.
Court fees for a Claim of £500 is £35.00
at this stage I dnt want to spend more money and also dont want to complicate it.
This is my first ever court case and I am a bit nervous as well.
I agree with you that a counterclaim might put additional pressure to drop the case but for now I'll skip the counterclaim.0 -
IN THE COUNTY COURT
Claim No.: XXXXX
Between
PARKING AND PROPERTY MANAGEMENT LIMITED
(Claimant)
-and-
[XXXXXXXX]
(Defendant)
___________________________________________________________________________
DEFENCE
___________________________________________________________________________
The Defendant denies any liability to the Claimant for the sum claimed, or any amount at all, for the following reasons:
1. The Defendant was at all times the leaseholder of Flat [address] ("the property"). He purchased the lease to the property on 9 June 2017 ("the lease"). The Defendant avers that the lease granted him sole rights to use the allocated space identified and defined therein for the purpose of parking a vehicle ("the parking space").
2. The Defendant admits that at the relevant time he was the registered keeper of the vehicle in question but denies being the driver and avers that his vehicle was at all relevant times parked in the parking space.
3. The lease grants the Defendant the right to park a vehicle in the parking space identified therein as his allocated space (Clause 5, Schedule 9). This right is not qualified with any requirement to display a permit. It includes the right to park a vehicle not necessarily owned or driven by the Defendant. When the Defendant moved into the property, he was met by the freeholder's Handover Manager and there was no mention of any restrictions or qualifications in relation to the parking space that were communicated to the Defendant by the Handover Manager.
4. The Defendant denies that on the date he moved into the property the Claimant was operating, or authorised to operate at [address of development].
5. The Defendant denies that the Claimant was thereafter properly authorised to operate at [development].
6. The Defendant avers that the freeholder purported to engage the services of the Claimant and purported to authorise them to operate at [development address] on or about x date but that such engagement was not authorised by the terms of the lease
7. The Defendant admits that under the terms of the lease, the Management Company (which is not the Claimant but Gateway Property Management Limited) is entitled to introduce new "Estate Regulations" (Clause 10, Schedule 7). The Defendant denies that the freeholder Bellway Homes Limited has at any time been entitled under the lease to introduce new "Estate Regulations".
8. The Defendant denies that, in any event, the right to introduce new "Estate Regulations" includes the right to introduce any such regulations in respect of the parking space because the right, as defined in the lease, does not extend to the parking space but only to the Estate Communal Areas and the buildings, which do not include any of the car parking spaces at the development, including the Defendant's parking space (clause 10, Schedule 7).
9. The Defendant denies that any contract can have been formed between driver and Claimant, because the Claimant cannot have made any valid offer of parking in respect of the Defendant's parking space which was capable of acceptance, nor was there any consideration flowing, because the Defendant at all relevant times already had the right, to the exclusion of all others, to park in the parking space under the terms of the lease or to authorise others to do so (so long as such parking was within the terms of the lease, which he avers it was).
10. The Defendant denies that he, or any third party authorised by him to park in the parking space, was obliged to comply with any terms and conditions which the Claimant might have attempted to impose through the display of signage (although the display of signage is not admitted and the Claimant is put to full proof thereof) - specifically the requirement to display a permit - because he already had the right to park in the parking space, and to authorise others to do so, under the terms of the lease.
11. The Defendant denies that the Claimant has locus standi to bring this claim because the lease specifically prohibits the freeholder/management company's rights being enforced by third parties - Clause 17 in Schedule 7 of the lease. The Defendant avers that the Claimant is a third party. If it is claimed that the Defendant has breached the terms of the lease in relation to the use of the parking space, then this is a matter between him and the freeholder and/or the management company, in accordance with the terms of the lease.
12. Even if the freeholder had been entitled to contract with the Claimant to operate on the car parking spaces, including the Defendant's parking space, and even if the new requirement by the Claimant to keep and display a parking permit comes within the definition of a new "Estate Regulation", such new regulations can only be introduced if they are notified to leaseholders in writing (clause 10, Schedule 7). The Defendant denies that he was at any time notified in writing of any regulations relating to his parking space.
13. Therefore, the Defendant avers that any attempt by the freeholder to introduce parking regulations is void, for the reasons set out in paragraphs [7, 8 and 12] above.
14. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, in spite of repeated requests by the Defendant, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
15. The Claimant has artificially inflated the value of the Claim from £100 to £806.36. The Defendant denies that such added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
16. Even if the Claimant were properly authorised to operate on, inter alia, the Defendant's parking space, and even if the Claimant were able to impose further conditions on the Defendant's use of the parking space, and even if the Claimant has locus standi to bring this claim, and even if there were a contract formed between the driver and the Claimant (all of which, for the avoidance of doubt is denied), the Defendant denies that he is liable for any breach thereof as the registered keeper of the vehicle, because the Claimant has failed to comply with the requirements of the Protection of Freedoms Act 2012, Schedule 4 ("POFA"). POFA provides that a registered keeper can only be held liable for a parking charge if a valid Notice to Keeper (NTK) has been served. The Defendant denies that any valid NTK was served.
17. The Court is invited to dismiss the Claim, and to allow such Defendants costs as are permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Defence Statement are true0 -
What is the Date of Issue on your Claim Form?0
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IN THE COUNTY COURT
Claim No.: XXXXX
Between
PARKING AND PROPERTY MANAGEMENT LIMITED
(Claimant)
-and-
[XXXXXXXX]
(Defendant)
___________________________________________________________________________
DEFENCE
___________________________________________________________________________
The Defendant denies any liability to the Claimant for the sum claimed, or any amount at all, for the following reasons:
1. The Defendant was at all times the leaseholder of Flat [address] ("the property"). He purchased the lease to the property on 9 June 2017 ("the lease"). The Defendant avers that the lease granted him sole rights to use the allocated space identified and defined therein for the purpose of parking a vehicle ("the parking space").
2. The Defendant admits that at the relevant time he was the registered keeper of the vehicle in question but denies being the driver and avers that his vehicle was at all relevant times parked in the parking space.
3. The lease grants the Defendant the right to park a vehicle in the parking space identified therein as his allocated space (Clause 5, Schedule 9). This right is not qualified with any requirement to display a permit nor any obligation to pay a charge for failure to do so (nor in respect of any failure to comply with the conditions set out in Clause 5 of Schedule 9 of the lease). It includes the right to park a vehicle not necessarily owned or driven by the Defendant. When the Defendant moved into the property, he was met by the freeholder's Handover Manager and there was no mention of any restrictions or qualifications in relation to the parking space that were communicated to the Defendant by the Handover Manager in addition to those contained in the lease.
4. The Defendant denies that on the date he moved into the property the Claimant was operating, or authorised to operate at [address of development].
5. The Defendant denies that the Claimant was thereafter properly authorised to operate at [development].
6. The Defendant avers that the freeholder purported to engage the services of the Claimant and purported to authorise them to operate at [development address] on or about x date but that such engagement was not authorised by the terms of the lease
7. The Defendant admits that under the terms of the lease, the Management Company (which is not the Claimant but Gateway Property Management Limited) is entitled to introduce new "Estate Regulations" (Clause 10, Schedule 7). The Defendant denies that the freeholder Bellway Homes Limited has at any time been entitled under the lease to introduce new "Estate Regulations".
8. The Defendant denies that the Management Company took any steps to introduce new Estate Regulations pursuant to Clause 10 of Schedule 7 since his purchase of the lease which affected his rights granted therein to sole use of the parking space. The Defendant further denies that the right to introduce new "Estate Regulations" includes the right to introduce any regulations in respect of the parking space because the right, as defined in the lease, does not extend to the parking space but only to the Estate Communal Areas and the buildings (the definition of which does not include any of the car parking spaces at the development, including the Defendant's parking space) as set out in clause 10, Schedule 7.
9. The Defendant denies that any contract can have been formed between driver and Claimant, because the Claimant cannot have made any valid offer of parking in respect of the Defendant's parking space which was capable of acceptance, nor was there any consideration flowing, because the Defendant at all relevant times already had the right, to the exclusion of all others, to park in the parking space under the terms of the lease or to authorise others to do so (so long as such parking was within the terms of the lease, which he avers it was).
10. The Defendant denies that he, or any third party authorised by him to park in the parking space, was obliged to comply with any terms and conditions which the Claimant might have attempted to impose through the display of signage (although the display of signage is not admitted and the Claimant is put to full proof thereof) - specifically the requirement to display a permit - because he already had the right to park in the parking space, and to authorise others to do so, under the terms of the lease and the Claimant had no right to interfere with those pre-existing rights.
11. The Defendant denies that the Claimant has locus standi to bring this claim because the lease specifically prohibits the freeholder/management company's rights being enforced by third parties - Clause 17 in Schedule 7 of the lease. The Defendant avers that the Claimant is a third party under the terms of Clause 17, Schedule 7. If it is claimed that the Defendant has breached the terms of the lease in relation to the use of the parking space, then this is a matter between him and the freeholder and/or the Management Company, in accordance with the terms of the lease.
12. Even if the freeholder had been entitled to contract with the Claimant to operate on the car parking spaces, including the Defendant's parking space, and even if the new requirement by the Claimant to keep and display a parking permit comes within the definition of a new "Estate Regulation", such new regulations can only be introduced if they are notified to leaseholders in writing (clause 10, Schedule 7). The Defendant denies that he was at any time notified in writing of any regulations relating to his parking space.
13. Therefore, the Defendant avers that any attempt by the freeholder to introduce parking regulations is void, for the reasons set out in paragraphs [7, 8 and 12] above.
14. In order to issue parking charges, and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. No evidence of such authority has been supplied by the Claimant or their legal representatives, in spite of repeated requests by the Defendant, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
15. The Claimant has artificially inflated the value of the Claim from £100 to £806.36. The Defendant denies that such added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
16. Even if the Claimant were properly authorised to operate on, inter alia, the Defendant's parking space, and even if the Claimant were able to impose further conditions on the Defendant's use of the parking space, and even if the Claimant has locus standi to bring this claim, and even if there were a contract formed between the driver and the Claimant (all of which, for the avoidance of doubt is denied), the Defendant denies that he is liable for any breach thereof as the registered keeper of the vehicle, because the Claimant has failed to comply with the requirements of the Protection of Freedoms Act 2012, Schedule 4 ("POFA"). POFA provides that a registered keeper can only be held liable for a parking charge if a valid Notice to Keeper (NTK) has been served. The Defendant denies that any valid NTK was served.
17. The Court is invited to dismiss the Claim, and to allow such Defendants costs as are permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Defence Statement are true
Looks good to me, I just added/changed some minor things.Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Then you have until 4pm on Tuesday 7th August 2018 to file your Defence.
When you are happy with the content, your Defence should be filed via email as described here:
1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.0 -
Have you sent them a copy of your lease?
I think you should. I'd write to them in these terms - it won't make them withdraw but it sets you up for a costs claim later:
Dear Sirs
I have today filed my Defence, and enclose a copy. I also enclose a copy of the lease referred to.
As you will already know before having sight of my Defence, it is my case that the parking space in which my car was parked on the relevant date was demised to me under my lease in respect of [address]. I have exclusive rights to it as a leaseholder. I may park there myself, or allow others to do so, provided this is in accordance with the terms of the lease.
Neither the freeholder, Management Company, nor you [or your client] can impose terms on my use of my parking space, other than what is in the lease. And if there were any right to do so, the lease specifically provides that no third party (in this case you/your client) may enforce its terms.
The freeholder, who I understand has contracted with you to operate in the carpark, had no right to contract with you in any terms and had no right to introduce any further conditions or terms concerning my pre-existing rights to use my parking space. Whilst the Management Company (not the freeholder) has the right to introduce new "Estate Regulations", these are defined so that they do not include the car park, but only other areas of the development.
Under the terms of the lease, there is no power reserved to the freeholder or the Management Company to impose upon me a contractual relationship with a third party, nor to levy any charges other than the ground rent/service charge provisions set out in the in the lease.
You therefore have [or your client has] absolutely no right to restrict or impose new conditions on my use of my parking space, or to enforce them. Therefore, every time your [client's] operatives set foot on my space is a trespass. Every time they put a PCN on my vehicle is a trespass. I should make it very clear that you/your client does not have my permission, express or implied, to enter onto my parking space again, nor to touch any vehicle parked in it. Without my consent, such acts are a trespass.
Please also be aware/inform your client that if I choose to display a permit on my vehicle, or in any other vehicle legitimately parked in my space, that is not an acceptance of any right on your/your client's part to enter onto it. Likewise, if I choose not to display a permit, that does not give your client any authority to commit further acts of trespass. Nor does it signify any acceptance on my part of any right on your/your client's part to enforce the terms it has purported to impose upon me in respect of my right to use the parking space.
Since the terms of the lease are quite clear, I require you/your client to withdraw its claim and to cease processing my data.
I reserve all my rights in relation to your/your client's trespass.
Yours faithfullyAlthough a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Yes I agree with this.Loadsofchildren123 wrote: »Have you sent them a copy of your lease?
I think you should. I'd write to them in these terms - it won't make them withdraw but it sets you up for a costs claim later:
Dear Sirs
I have today filed my Defence, and enclose a copy. I also enclose a copy of the lease referred to.
As you will already know before having sight of my Defence, it is my case that the parking space in which my car was parked on the relevant date was demised to me under my lease in respect of [address]. I have exclusive rights to it as a leaseholder. I may park there myself, or allow others to do so, provided this is in accordance with the terms of the lease.
Neither the freeholder, Management Company, nor you [or your client] can impose terms on my use of my parking space, other than what is in the lease. And if there were any right to do so, the lease specifically provides that no third party (in this case you/your client) may enforce its terms.
The freeholder, who I understand has contracted with you to operate in the carpark, had no right to contract with you in any terms and had no right to introduce any further conditions or terms concerning my pre-existing rights to use my parking space. Whilst the Management Company (not the freeholder) has the right to introduce new "Estate Regulations", these are defined so that they do not include the car park, but only other areas of the development.
Under the terms of the lease, there is no power reserved to the freeholder or the Management Company to impose upon me a contractual relationship with a third party, nor to levy any charges other than the ground rent/service charge provisions set out in the in the lease.
You therefore have [or your client has] absolutely no right to restrict or impose new conditions on my use of my parking space, or to enforce them. Therefore, every time your [client's] operatives set foot on my space is a trespass. Every time they put a PCN on my vehicle is a trespass. I should make it very clear that you/your client does not have my permission, express or implied, to enter onto my parking space again, nor to touch any vehicle parked in it. Without my consent, such acts are a trespass.
Please also be aware/inform your client that if I choose to display a permit on my vehicle, or in any other vehicle legitimately parked in my space, that is not an acceptance of any right on your/your client's part to enter onto it. Likewise, if I choose not to display a permit, that does not give your client any authority to commit further acts of trespass. Nor does it signify any acceptance on my part of any right on your/your client's part to enforce the terms it has purported to impose upon me in respect of my right to use the parking space.
Since the terms of the lease are quite clear, I require you/your client to withdraw its claim and to cease processing my data.
I reserve all my rights in relation to your/your client's trespass.
Yours faithfully
I will send GL***TONES Solicitors this letter with a copy of my lease with my defence statement attached.
I don't have an email for them so will have to post them.
tomorrow I will file my defence and will send a letter to the claimant's solicitors also
Thanks for your help.
I wouldn't have been able to reach this far alone and would have just ended up paying.0
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