Large VCS claim received for residential space

bargepole

Guys_Dad wrote: »

If the lease did contain any reference to parking conditions yet the tenancy agreement did not then the landowner is perfectly entitled to take legal action against whoever is parking contrary to their site agreements. That would cover tenants as well as any casual visitors or trespassers.

Casual visitors or trespassers certainly, because they would have no pre-existing rights over the property.

But a tenant is not a party to the lease agreement between the leaseholder and the freeholder, and therefore cannot be bound by its terms, unless the tenancy agreement contains a clause or covenant to that effect.

Look at the Judgment in PACE Recovery v Noor [2016, Croydon County Court, C7GF51J1). District Judge Coonan held that although Mr Noor was a tenant of Affinity Sutton, the PPC notices could not override his rights granted by the tenancy agreement, unless a variation of terms had previously been agreed. Affinity Sutton had relied on an attempt at variation made some years earlier to facilitate the introduction of a different PPC, but it was ruled that because insufficient notice had been given, that document was void, and neither Affinity Sutton nor PACE could rely upon it.

Guys_Dad

bargepole wrote: »

But a tenant is not a party to the lease agreement between the leaseholder and the freeholder, and therefore cannot be bound by its terms, unless the tenancy agreement contains a clause or covenant to that effect..

I am suggesting that it is more than a possibility that the tenancy agreement may have wording to that effect, but I don't know for sure in this case. However, it seems a prudent inclusion.

The wording from my previous post in the penultimate paragraph was cribbed from a standard tenancy agreement on a leasehold property available from a number of web sites.

In a way, a bit academic in this case if the leaseholder is getting involved but just 3 things

1. lucere - does your tenancy agreement have a similar paragraph? "The provisions of this tenancy/sublet agreement are subject to the terms and restrictions of the master tenancy/lease agreement dated dd/mm/yy/between XXXXXX landholder and yyyy leaseholder."

2. The Deep - do your sub-lets have similar wording?

3. If that is in any way standard wording for a tenancy agreement in a flat, then the tenant should ask to see the head lease before signing an agreement that contracts them to conditions that they may not be fully aware of.

lucere

Guys_Dad wrote: »

lucere - does your tenancy agreement have a similar paragraph? "The provisions of this tenancy/sublet agreement are subject to the terms and restrictions of the master tenancy/lease agreement dated dd/mm/yy/between XXXXXX landholder and yyyy leaseholder."

I've found in the "Definitions and Interpretation":

1.14 "Head Lease" or "Superior Lease" sets out the promises the Landlord has made to his Superior Landlord (if applicable). The promises contained in the Head Lease will bind the Tenant.

and Section 4 Superior Lease:

THE TENANT WILL:
4.1 Agree to enter into any Agreement, Deed of Covenant or License with the Superior Landlord agreeing to observe and perform the covenants of the Superior Lease if reasonably required to do so

4.2 Where the Property is subject to a Superior Lease to a Superior Landlord and the Landlord has undertaken to perform the covenants and provisions and agreements set out in the Superior Lease (excluding and payment of ground rent, Rent, or service charge) then the Tenant will comply with the following:

4.3 To perform the covenants and conditions and provisions and agreements set out in the Superior Lease.

4.4 To accept that the covenants and conditions and provisions and agreements set out in the Superior Lease may be worded in legal language and that the Tenant has been advised to consider them carefully and if necessary to seek their own advice, for example from a solicitor or a Citizens Advice Bureau or a Law Centre

4.5 Not do or permit anything to be done which under the terms of the Superior Lease requires the approval of the Superior Landlord without obtaining such approval as well as the approval of the Landlord under this agreement

4.6 To refer any application for such approval in the first instance to the Landlord under this Agreement or the Landlord's Agent

4.7 To pay any reasonable costs of the Landlord in considering such an application under clause 4.5 above whether the application is granted, refused or withdrawn

4.8 To inform the Landlord promptly of any damage destruction or need for repair to prevent deterioration of the Property or the building of which it forms part as soon as it comes to the attention of the Tenant to enable to the Landlord or the Landlord's Agent to inform the Superior Landlord or the Superior Landlord's Agent.

4.9 Agree that prior to signing this Agreement the Landlord or the Landlord's Agent has given the Tenant a copy of the Superior Lease


I've bolded the points which I feel are relevant to this thread. But my question now is how does this discussion help me prepare my defence? I was going to use evidence from both documents (starting with the AST), so does it matter which one has primacy?

Guys_Dad

The head lease is the prime contract. If you have complied with that then you can claim that primacy of contract outweighs any non lease constraints imposed by landowner.

You have a copy of the superior lease? Any mention of PPCs in it? If not, then that is your major plank.

lucere

Hi all,

I have been away on holiday but am now working on this for the rest of this week. I have a few of questions as well as a first draft of my defence statement:

1. On MCOL, the claim was issued on 31/07/18, but I've had a notification saying "Date of service of 07/08/2018 notified on 22/08/2018". Does this mean my deadline for defence is a bit further away than I thought, and do weekends count? I thought it was only 5 days between issue and service

2. Below is my defence draft I've put together using Johnersh's template and bargepole's example above. Any feedback would be greatly appreciated! I am wondering if I need to include an alternative defence (Johnersh's inadequate signage doesn't really apply in my case I think)?

3. Should I challenge their authority to operate? No evidence provided of a contract chain to landowner / There is no clause in the lease allowing Management Company to make changes to it / I didn't receive any written notification of their "enforcement" beginning

----

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No:

BETWEEN:

(Claimant)

-and-

(Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of the [Make/Model] with vehicle registration number [xxxx xxx] which is the subject of these proceedings.

4. It is admitted that at all material times, the Defendant's vehicle was parked at [site name] in the correct allocated bay [bay number and level].

Authority to Park and Primacy of Contract

5. Under the terms of the Defendant’s tenancy, a number of references are made to conditions of parking motor vehicles:

“7.10 To use the car parking space(s) if one forms part of the Tenancy Agreement for the parking of a private vehicle(s) at the Property only.
7.11 To park in the space allocated to the Property as set out in the Particulars of the Agreement.
7.12 To park in the garage or driveway to the Property if applicable.

There are no terms within the tenancy requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. A copy of the tenancy agreement will be provided to the Court.

6. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the Superior Lease for [address] (of which the Defendant is bound through Section 4 of the tenancy agreement), which cannot be fettered by any alleged parking terms. The lease terms provide “the exclusive right to park one private motor vehicle on the parking space […] shown and numbered on Plan 1” with no requirement to display a parking permit. A copy of the superior lease will be provided to the Court.

7. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy and superior lease. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the tenancy agreement or superior lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. – use alternative/more relevant judgments here?

8. Accordingly it is denied that:
8.1. there was any valid contract or agreement between the Defendant or and the Claimant
8.2. there was any obligation (at all) to display a permit; and
8.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

STATEMENT OF TRUTH
The defendant believes that the facts stated in the defence are true.


Signed:


Date:

Coupon-mad

The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. – use alternative/more relevant judgments here?

No because a defence isn't really the place for case 'law'. You can introduce any cases later, as transcripts in your evidence with your WS.

I would just change this line, personally:

8.3. the Claimant has suffered loss or damage or that there is any 'legitimate interest' or other lawful basis to pursue a 'contractual charge' claim [STRIKE]for loss[/STRIKE]. In all respects, the case of Parking Eye Ltd v Beavis [2015] UKSC 67 is distinguished.

Le_Kirk

lucere wrote: »

________________________________________
DEFENCE [STRIKE]STATEMENT[/STRIKE]
________________________________________

It is just Defence

NeilCr

Have you had sight of the Superior Lease?

lucere

NeilCr wrote: »

Have you had sight of the Superior Lease?

Yes I've had the official copy through from the land registry

lucere

Coupon-mad wrote: »

No because a defence isn't really the place for case 'law'. You can introduce any cases later, as transcripts in your evidence with your WS.

I would just change this line, personally:

Le_Kirk wrote: »

It is just Defence

Thank you both for the suggestions, I've amended as appropriate