Gemini parking fine in allocated spot despite contract between me and landlord

yxwvutsrqponmlkjihgfedcba

Hi all,

I recently received a PCN from Gemini, who manage the car parking in my development, because my permit (which I pay for monthly via a contract) was not 100% visible.

I am currently in the process of appealing this and would like some advice please. I am usually guilty of paying these PCN's without putting in the effort to fight them but this particular case is infuriating me because I pay a large amount per month to park in this space, through a contract, and my commercial landlord is refusing to ask Gemini to rescind their notice.

Before I start, I thought it might be useful if I first of all outline the stages of correspondence to date


First correspondence


I may have failed at the first hurdle, having discovered this website late, and possibly incriminated myself as the driver. My email and appeal to Gemini was along the lines of this - speech marks indicate exact wording.

I stated that "I was given" a ticket despite having a permit, highlighting where "my permit was placed" and mentioning that "I don't think that I" should be ticketed for this.

Does this incriminate me as the driver? Gemini sure enough refused my appeal as my permit was obstructed by something and was not 100% visible.

Second correspondence

I have since been in contact with my landlord with the entirety of the details which more or less incriminate me as the driver of the vehicle. This email chain may or may not have been emailed to a contact at Gemini.

The landlord has stated that I have entered into an agreement with Gemini by entering the car park despite me producing my contract which I was sure would over ride this so-called "agreement". They have refused to issue a cancellation notice.

Current Day

I am currently appealing to POPLA and I have a few questions - in the appeals box, can I tick both "I was not improperly parked" and "I was not the driver or registered keeper"?

Under I was not imporperly parked, I wish to tick

• I was parked in an area in which I was free to park

Under I was not the driver, can I tick other?


My car is also registered at my parent's address although I live elsewhere. Is it a problem to place my current address in the appeals process?

Points

I'm not really savvy enough to understand all these legal technicalities so the only point I currently understand, and I think is a very valid one is that I have a contract to rent the parking space. Details of which are provided below.

The contract is entitled a Licence Agreement - it is NOT an AST
The Owner is my landlord (who employs Gemini)
The Licensee is myself
The parking space is the parking space in which I was parked (but permit was not visible in its entirity)
My license plate or any detail about my vehicle is not in the contract

The contract in exact words "Licenses and permits the Licensee to occupy and enjoy the parking space detailed for the period noted above and at the rental amount detailed above. The terms and obligations of both parties are detailed under. These terms will be legally binding once the License has been signed and dated"

Terms and Obligations

Now a lot of the terms are fluff, however crucially, there is NO mention that I have to display my permit nor heed any signs in the car park that are not related to traffic control; this clause is displayed below in exact wording.

"The Licensee shall at all times comply with all signs in the car park relating to traffic
control measures including direction and speed signs and give way or stop markings and
shall not exceed any speed limit imposed at any time on the car park, plot or
neighbourhood common parts, nor drive recklessly or in such a way to endanger the
safety of pedestrians or other vehicles."

I am under the impression that this is a slam dunk point that POPLA should accept? would I be correct in this understanding? Surely the terms and rights of my contract supersede any rubbish Gemini have plastered in the car park which I do not need to comply with? (as per the contract). Surely, by entering into the car park, I can't have entered into an agreement which supersedes the contract between me and the landlord?

Due to my perceived strength in this argument, is it ok to not tick that I was not the driver? Do I need to add any more points? or is this strong enough

Thank you all in advance for your help. I would buy you a beer if I could!

KeithP

yxwvutsrqponmlkjihgfedcba wrote: »

Unfortunately however I fear I may have missed my deadline to appeal to POPLA? I received a letter in the post on the 19th December and it states that I can appeal within 28 days. Is this 28 days within the date of my fine, 20th November, or 19th December?

Didn't the letter supplying the PoPLA Code include the sentence:

Any appeal to POPLA must be received within 28 days of the date on this letter.

Actually, you get over thirty days from that date.

yxwvutsrqponmlkjihgfedcba

KeithP wrote: »

Didn't the letter supplying the PoPLA Code include the sentence:

Actually, you get over thirty days from that date.

Ah yes you are right, I was reading the back of the ticket. The appeal response was slightly ambiguous as it did not mention which day the 28 starts from but that you should use the POPLA code provided in the appeal. Using some logic I realised the POPLA number appears nowhere else so it must be from my appeal date.

Thanks! I will edit the title accordingly

With regards to my contract, do you think that I will be OK?

Moreover, do I need to provide proof I was the driver or is it merely up to them to prove it? I assume the latter going by the majority of the forum?

yxwvutsrqponmlkjihgfedcba

I have just been mulling over this over the weekend and would anyone agree that in order for my contract to be valid, I would need to admit to POPLA that I was the driver /not tick that I wasnt the driver? As the licensee is me, not the car

Umkomaas

yxwvutsrqponmlkjihgfedcba wrote: »

I have just been mulling over this over the weekend and would anyone agree that in order for my contract to be valid, I would need to admit to POPLA that I was the driver /not tick that I wasnt the driver? As the licensee is me, not the car

If you've already stated to the PPC that you were the driver (and I realise it's not clear in your opening post), then it's a bit academic.

In the alternative, provided Gemini has all its Protection of Freedoms Act 2012 ducks in a row, in the absence of knowing who the driver was, they can transfer liability to the keeper.

The_Deep

Who was driving is largely immaterial in "own space" claims. If it goes to court it is easier for the leaseholder to admit to driving.

The important thing is the wording of the lease which usually has primacy of contract over the scammers T&Cs. They cannot offer you anything you already have, so there can be no contract.

http://parking-prankster.blogspot.com/2016/11/residential-parking.html. No contract equals no breach of contract, claim dismissed. They are trying to scam you.

It is the will of Parliament that these scammers be put out of business.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

Fruitcake

In an Own Space situation, revealing the driver's identity is not fatal if the lease/AST is of help.

It is easier to say to a judge, I parked in my demised space. Here is my lease/AST showing it has primacy of contract over an unregulated third party, or words to that effect, than talk about The Driver and their lease/AST, to which the keeper may or may not be party.
A judge may well decide on the balance of probabilities that in such a case, the driver and the keeper are the same person.

However, a win at PoPLA might be easier on non PoFA complaint NTK, which an assessor might (should) understand as opposed making them understand that a lease/AST trumps a contract between the scammers and a HA/MA. We have seen many a daft PoPLA decision, and going outside the assessor's knowledge base may mean getting a crap result.

It really depends on how strong your other PoPLA appeal points are.

Losing at PoPLA still gives the opportunity to reveal the driver's identity and bring out the Primacy of Contract defence should it then proceed to court.

Always tick other on the PoPLA appeal. It doesn't rule out naming the driver, just gives the appellant more options.

I wouldn't tick anything where you have to say who was driving or who parked, unless the lease/AST point is going to be used by The Driver.

yxwvutsrqponmlkjihgfedcba

Thank you all - I will appeal on the basis that I have a legal right to park in the space, without adhering to permit signs & the fact that signage is not clear

Ralph-y

In your POPLA appeal you will appeal on all points that are mentioned in the section in the newbies thread



as an example



1. No keeper liability, including Notice to Keeper errors (PoFA 2012)
2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
3. No Contract to manage parking
4. Signage
5. Consumer Rights Act 2015
6. BPA Code of Practice breaches
7. Why Beavis doesn't apply in your parking event

your main appeal point can be / should be number one , but appeal all points and more if you can find them


Ralph:cool:

Coupon-mad

yxwvutsrqponmlkjihgfedcba wrote: »

I have just been mulling over this over the weekend and would anyone agree that in order for my contract to be valid, I would need to admit to POPLA that I was the driver /not tick that I wasnt the driver? As the licensee is me, not the car

I would NOT do that with a POPLA appeal v Gemini, no.

Better to point out the failures of a Gemini NTK to comply with Schedule 4, like someone else did on a Gemini thread only the other day. Search the forum for Gemini POPLA as keywords, and copy/adapt to suit.

And include this as evidence for POPLA, but without saying you 'park' only that you pay and have a contract allowing your car to be parked...(a huge difference):

I pay a large amount per month to park in this space, through a contract

You should appeal just ticking OTHER, like the NEWBIES thread tells everyone. You then summarise your appeal in a few sentences and say: see PDF appeal attached - my full appeal - plus proof of the contract/payment (not to Gemini) for the primacy of contract proof of the right to park that exists already.

And upload that proof, plus the PDF (deliberately very long) POPLA appeal like all the others.