Fine in Own Space

creative-2008

Evening all,

We bought a leasehold flat about 14 months ago. When we moved in there were signs up for parking fine company, but the contract had expired. Around 11 or 12 months ago, a new company took over, and we were sent permits. They didn't start for a few weeks, and it went into a draw in the house.

On the first day of the enforcement kicking in, we got up for work to a yellow notice on the car. I'm out of the door at 6am every day, so they must have been up pretty early to get there before me!

To be honest, I didn't think much of it, as the parking space is included in our lease, and this was something that we specifically looked for when we were buying a flat. It went into my desk draw at work, unopened, where it remains.

We received a letter through the post today from Gladstone's Solicitors a 'Letter Before Claim.' Basically saying they want £160 for the fine and their work. Previously, it had been sent to our old address at the start of August this year, where I think the car may still be registered. (Mental note to self to get that sorted!)

Quick google suggests Gladstones aren't really a 'proper' solicitor, and really just chase debts, but that aside.

As far as I'm concerned, it's our space and I have no intention of paying. I called Gladstones tonight to discuss, and they said that it's 'common' to happen to flat owners!

I've read the FAQs and believe that we are within our rights not to pay, as there's just the typical clause in our lease saying that needs to be taxed etc, see below.

I just wanted to check whether I'm still okay to challenge it at this stage, having ignored it for so long? And also, should I be sending letters to the parking company PCM UK?

Thanks

Our-Lease wrote: »

Not to use any parking space otherwise than as a parking area for one domestic motor car or motorcycle in a taxed sound and roadworthy condition only and not for any other purpose and not to deposit any rubbish or refuse or other debris thereon
(b) Not to park at any time on any part of the parking space any commercial vehicle exceeding 15 cwl (unladen weight) except where the same results from the temporary use of removal or delivery vans nor any vehicle in such manner as to obstruct the ready approach to any part of the Estate

pogofish

You are making some fundamental mistakes here - Please read the current advice in the Newbies Sticky properly and take its advice from now-on.

Half_way

Get in touch with the management company and complain to them, tell them in no uncertain terms that the space is yours and neither they, nor their agents can offer you something that is already granted to you - your parking space.
You should also put them on notice that you do not agree, nor consent to the parking company using your space as a profit making venture, and if they continue to use /process your personal data you will take this as a breach of the GDPR regulations, for which the management company will be held liable, and the person on the management company who agreed to the parking company will also be held personally liable for any damages under the GDPR regulations

creative-2008

pogofish wrote: »

You are making some fundamental mistakes here - Please read the current advice in the Newbies Sticky properly and take its advice from now-on.

You're right. I was a bit annoyed when I first read the letter, and only skim read the FAQ. (Appreciate that's extremely annoying for regular forum posters looking to help people, so my apologies.)

Essentially, what I'm summarising from the FAQs then, is that the lease is the route to go down, and to deal with PCM UK, and not to discuss whether the legal keeper of the vehicle was the driver.

This is the letter/message that I'm proposing to send via their online complaints/dispute portal. I've taken the template letter from the FAQ that felt most appropriate and edited it to say leaseholder, and edited out the parts that didn't feel relevant such as credit card surcharge and inadequete signage.

Letter wrote: »

Dear Sir/Madam,

Please accept this letter as my formal challenge to this ‘PCN’ as keeper of the abovementioned vehicle. I fully deny liability for this charge based on the following:

1. The driver was given express permission to use the parking bay in question by the leaseholder. An unfettered right to park in this bay is bestowed upon the leaseholder by their lease agreement, without the requirement to display a permit.

a. The leaseholder’s contract cannot be unilaterally altered by one party – the operator – without their permission. This is a well-established legal principle. Therefore, the lease agreement constitutes primacy of contract over any signs that may have been erected by the operator.

2. There is a large body of case law that evidences the primacy of the leaseholder’s lease agreement over an operator’s signs:

a. Saeed v Plustrade Ltd (2001): the resident’s ‘easement to park’ was established at the Court of Appeal.
b. Jopson v Homeguard (2016): Miss Jopson successfully appealed her liability for a parking charge issued by Homeguard Services, arguing on the basis that the charge was incompatible with the terms of the lease which gives residents (and their visitors, delivery drivers, etc.) easements and specific rights that supersede any signs erected by a parking management operator.

i. It was also established in this case that the ruling of ParkingEye v Beavis (2015) does not apply to residential parking, and therefore the doctrine prohibiting an operator from imposing a penalty is still relevant.

1.

Therefore, the charge in question is likely to be such a penalty unless there is found to be commercial justification (which, in a residential car park, is impossible) or it is found to be a genuine pre-estimate of loss (which is similarly implausible in a residential car park where the right to park is bestowed upon residents).
2. The Supreme Court found that £85 was not a genuine pre-estimate of loss in the Beavis case as there was no direct loss to the parking company. Therefore, commercial justification for charging residents and their visitors to park in their own spaces is untenable and unconscionable.
3. There can be no legitimate interest in issuing charges to residents or their permitted visitors, and so the Beavis ‘test’ is not satisfied. Any such charge should be deemed a penalty.

c.

Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.

i.

District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit: ‘What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that.’
ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage. This demonstrated Mr N.’s right to park with no requirement to display a permit.

d.

Link Parking v Ms P. (2016): it was also found that the PPC could not override the tenant’s right to park by requiring a permit.

i.

As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.
ii. Justice Louise Metcalf, presiding, ruled that the land occupier could not be penalised for parking in her own space.

3. Paper permits are an outdated an inefficient way of managing a residential car park. They do not take into account the needs of residents, who may have to swap cars at short notice, or who may bestow permission on another to use their space.
a.

Responsible parking companies will either use a modern, electronic system that does not require paper permits, or will cancel charges accidentally issued to residents or their guests. Why should any reputable parking management company refuse to cancel a parking charge wrongly issued to a resident or their visitor?

i.

Therefore, I contend that the purported parking restrictions are not in place to deter trespassers but to extort money from residents and their legitimate visitors.

4. No keeper liability has been established in line with the stipulations of Schedule 4 of the POFA 2012.
a.

The NTD is also non-compliant with the stipulations of paragraph 7(2)(a), which outlines that ‘the notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.’ The ‘PCN’ in question fails to adhere to this.

5. It is my understanding that you do not own the car park and you have provided no information about your policy with the landowner to issue such a charge on their behalf. No proof of your authority to operate on this land has been evidenced. You are required to supply this under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Clear information about the process for complaints, including a geographical address of the landowner, has been omitted.
a.

Should this charge be proven invalid, you will have breached data protection laws by acquiring my personal information from the DVLA. If this is the case, I am within my right to complain to the DVLA that you are issuing tickets on land without the right to do so.

i.

In light of this, I would draw your attention to the cases of Vidal-Hall v Google Inc., which provides authority that the misuse of personal data is a tort, and Halliday v Creation Consumer Finance Ltd, which outlines that a reasonable sum for compensation in such an instance would be £750.

Half_way wrote: »

Get in touch with the management company and complain to them, tell them in no uncertain terms that the space is yours and neither they, nor their agents can offer you something that is already granted to you - your parking space.

By the management company, you mean the company that I pay my service charge to, that have appointed the parking company? Are you recommending this instead of appealing/disputing this with the parking company?

[Deleted User]

You must respond to the letter of claim.


You will find a good basis for your reply in post #41 of BarraDisciple's thread.

Coupon-mad

Eljayjay2 wrote: »

You will find a good basis for your reply in post #41 of xxxx's thread.

I disagree, and do not recommend new posters us your 'template bomb' so I won't quote where you say to find it.

creative-2008

Be a bit forum savvy.

Be careful before assuming that a new poster (who has started to spam the forum and steer residential cases in a direction they do not need to take) is offering advice without the agenda the regulars think he has...

DO NOT REPLY TO ANY NEW POSTER WHO SENDS YOU A PM ON THIS BOARD. TELL US WHO IT IS AND WHAT THEY SAY, IF YOU GET ONE OFFERING TO 'HELP'.

You do not know the agenda of the poster. Could be a parking firm, or anyone.

Take the advice of the regular posters here on your thread - those with thousands or tens of thousands of posts to their username.

So, our advice as regular long-term posters is:

You must respond to Gladstones, not PCM, and:

- confirm which address is correct 'for service' otherwise you will find they revert back to the old address for a court claim next month and you might not hear about it until you've lost by default, just a fortnight or so later.

- show them the relevant rights you are relying on, as set out in your lease. Is the Defendant the leaseholder and driver? I would NOT hide who parked the car, in a residential case v PCM. Their NTK letter is POFA compliant usually so they can hold a keeper liable, so you need to narrow the issue down to primacy of contract and derogation from grant.

And you will be defending a claim soon, so be the driver (if you were) it makes no odds and makes it easier.

None of this is relevant in a reply, and avoid mentioning 'no pre-estimate of loss' as a phrase, at all, anywhere in the reply to Gladstones.

4. No keeper liability has been established in line with the stipulations of Schedule 4 of the POFA 2012.
a.

The NTD is also non-compliant with the stipulations of paragraph 7(2)(a), which outlines that ‘the notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.’ The ‘PCN’ in question fails to adhere to this.

5. It is my understanding that you do not own the car park and you have provided no information about your policy with the landowner to issue such a charge on their behalf. No proof of your authority to operate on this land has been evidenced. You are required to supply this under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Clear information about the process for complaints, including a geographical address of the landowner, has been omitted.
a.

Should this charge be proven invalid, you will have breached data protection laws by acquiring my personal information from the DVLA. If this is the case, I am within my right to complain to the DVLA that you are issuing tickets on land without the right to do so.

I would be showing an excerpt from the lease, stating that the resident was living there before PCM rocked up, and the resident owns the space and has never had to display a permit and has rejected the scheme (opted out for their bay).

Ask Gladstones to show their client's evidence of the outcome of the consultation they reckon was undertaken, as in order to interfere with a leaseholder's rights and charge (rip off) for parking where it was previously free, they would have to have obtained 75% agreement and not more than 10% of leaseholders objecting to a formal variation of the leases.

We all know that did not happen.

And threaten to sue the Managing Agent, whilst also asking them for a copy of the consultation they reckon allowed them to introduce this ex-clamper bunch of chancers, like this person did:

https://forums.moneysavingexpert.com/discussion/5884543/parking-at-my-apartment

...and return the permit and tell the MA you formally opt out of the scheme, do not AND NEVER DID agree to be charged to park in your own space and rely upon your primacy of contract and the fact you were not consulted and the MA are liable for a derogation from grant, and they will be liable for your losses if their pet dogs sue you.

See the references to the L&T Act in that linked thread.

The_Deep

As you own the space, read this

https://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

creative-2008

First thing to say, thank-you very much for all of support and advice from the forum. It's hugely appreciated.

This is a link to the redraft of my letter, which I think is stronger and more appropriate after the advice. It's just Microsoft Word online, but if it doesn't work for anyone I'll copy and paste into a thread.

https://1drv.ms/w/s!AjQLu8BwD7egh-9X429g3Uqkioiqww

Coupon-mad:1 wrote:

...and return the permit and tell the MA you formally opt out of the scheme, do not AND NEVER DID agree to be charged to park in your own space and rely upon your primacy of contract and the fact you were not consulted and the MA are liable for a derogation from grant, and they will be liable for your losses if their pet dogs sue you.

I'm somewhat cautious about involving the management agency unless I have to. I do feel very strongly that they're responsible as they've hired PCM, but I have to deal with them for communal repairs etc, such as my TV aerial needing sorting at the moment, so I'd rather keep on their good side if I can.

Also, I'm not against using the permit going forwards, and I'm happy enough for them to issue fines to other people trying to use our space. In the year we've lived here, we've had people park in it four times... ironically none of them have ever received a ticket.

If either of the above are a deal-breaker, then I can of course go with them, I'd probably just rather hold back for last resort.

I've enjoyed reading all of the links, and especially the link to the Parliament video. I'll be firing off a letter to the local MP too. Great idea.

Eljayjay2:1 wrote:

You must respond to the letter of claim.


You will find a good basis for your reply in post #41 of BarraDisciple's thread.

Thanks for this. That's going to take a bit of reading to get my head around, so I might hold off sending the letter until later tomorrow, when I've had a good chance to add that in.

Does that letter look good to go as is? If so, planning to post it to Gladstones first class, recorded delivery tomorrow.

[Deleted User]

Do not volunteer anything about what your lease has to say in your reply to the letter of claim.

The whole point about the letter on BarraDisciple’s thread is that it makes the parking operator’s solicitors prove their client’s claim unaided (i.e. without giving them the opportunity to rebut anything you might have to say).

You save your own evidence for your defence and witness statement.

Coupon-mad

Also, I'm not against using the permit going forwards,

I would be, seriously you ain't seen nothing yet from PCM. You have no idea.

and I'm happy enough for them to issue fines to other people trying to use our space.

I wouldn't be; IMHO they're scum ex-clampers who make money from predatory tactics.

In the year we've lived here, we've had people park in it four times... ironically none of them have ever received a ticket.

Hmmm...I think it's not ironic that those (planted?) cars never got a ticket. If you knew about PCM, you would be less naive than this:

http://parking-prankster.blogspot.com/2015/05/is-it-pcm-uk-who-make-up-stuff-all-time.html

http://parking-prankster.blogspot.com/2016/12/heath-parade-graham-park-way-scam-site.html

http://notomob.co.uk/discussions/index.php?topic=5947.0

It's been said that PCM might (allegedly) park 'decoy' cars in that bay shown in the link, to entice drivers into their badly signed trap.

So - in YOUR case, think about it, who parked those dummy cars there, then, to force a person to park out of a bay - who do you think might be behind that then...? How come they all got no tickets - ho hum, I wonder?

I could not think of many worse firms to be infesting your home residential car park.

creative-2008

Coupon-mad wrote: »

I would be showing an excerpt from the lease

@Eljayjay2 I see the logic in that. Have I misinterpreted the advice earlier, or are the two ideas conflicting.