Letter Before Claim - SCS Law & UKPC - Please Advise

CVKTA

As requested....

I write further to your correspondence dated 14th February 2019. I have now read through your information and ‘evidence’ bundle.
As per your comments, I have studied my lease and have attached a copy of the relevant sections for your perusal even though I am absolutely under no obligation to do so. Part 2, ‘Rights Granted to the Lessee’ states that as the Lessee within this residential complex, I have: “The exclusive right to park one private motor vehicle on the parking space (or each of the spaces as may be the case) tinted in green an Plan 1 or as allocated by the Lessor or the Management Company in writing from time to time”.
Attached you will also see a copy of ‘Plan 1’. The Lease that I hold is wholly between Persimmon Homes and me, the Lessee. Nowhere within the terms of the lease is there any mention of any terms which would fetter or restrict my enjoyment of my property.

Whilst operating your enterprise, I’m sure your client has become quite versed regarding the concept of ‘Primacy of Contract’ within Residential Parking cases. However, for the avoidance of doubt, the idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. Thankfully, I am armed with my lease agreement and those terms contained therein.
Under the Landlord & Tenant Act, any variation of a lease has to be through consultation and strict agreement. This never occurred; therefore my lease with Persimmon Homes cannot have been varied.
Moreover, I invite you to consider the principle of ‘derogation of grant’: The rule that a party should not derogate from its grant embodies a general legal principle that, if the landlord agrees to confer a benefit on the lessee, then the landlord should not do anything that substantially deprives the lessee of the enjoyment of that benefit. There is considerable case law which supports my view that the freeholder, in engaging with a contract with you client, has placed on leaseholders an onerous burden of having to display a permit at the risk of incurring a charge if they fail to do so. This is sufficiently intrusive as to override the grant of my parking space, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation.
Please review the following pertinent court decisions:
In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

With reference to the ‘CONTRACT FOR THE SUPPLY OF WARDEN CONTROL’ document within your evidence bundle, may I clearly point out that as stated by yourself in your previous letter, this is a “Redacted contract of authority between UK Parking Control Ltd and Persimmon Management Ltd c/o Mainstay Residential”.
Your client holds a contract with Persimmon, for supply of Warden Control, not with me. Why would I be in the least part interested in a document which has nothing to do with my leasehold agreement signed by two parties neither of whom is me?
Furthermore, the contract that you client holds with Persimmon in fact states a clear start date of September 2014, which is a full three months after I took ownership of the property and began enjoying the rights to my lease. My Lease is in fact dated 20th June 2014. As the lease between Persimmon and I was already in effect, no third parties such as your client, who have never been party to my lease, have any claims of anything against me in respect of my proprietary rights or interests.
Under contract law, I’m sure your client is also aware that as a party already entered into a signed agreement, I cannot be offered or entered into any form of contract via signage or otherwise for a service that I am already enjoying the use of, as per my lease agreement. What am I asserting is simply this: since, by virtue of the terms my lease agreement, I had been already afforded the right to park a motor vehicle in the parking space (I again refer you to the copy of ‘plan 1’) there can be no contract as your client claims simply because there is no ‘quid pro quo’, i.e. no consideration provided to me and I certainly provided none.
A permit had always been displayed, merely as a courtesy, on my vehicle while I park in my allocated parking space. This does not constitute the acceptance of any onerous ‘contract’ with your client. The signage onsite is there only to form a contract with non-residents and residents who do not own a car parking space.
I will end my response by advising you that the issue of unnecessarily penalising residents lawfully parking on their own property is not being ignored by parliament and our legislature. Notwithstanding the likelihood of an imminent introduction of legislation protecting people against unlawful parking charges (I refer your client to: Parking (Code of Practice) Bill 2017-19 which has passed its third reading in the House of Lords on 4th March 2019) I will also report the matter to my constituency’s MP.
Yours Sincerely,

CVKTA

Hi all,

Did anyone manage to cast their eyes over this?

Thanks CVKTA

Le_Kirk

Is that a response to a LoC/LBA/LBC/LBCCC or a POPLA appeal or a defence?

CVKTA

Hi Le_Kirk, I received an LBC, thena response and this is my next response....

Umkomaas

To my untrained legal eye, I am by no means a lawyer (not even a barrack-room varietal) it looks good to me. But, from experience, it is unlikely to have the immediate effect that you are perhaps seeking. Nonetheless, fire it off to them.

It will lay the ground for a Judge to fully consider and possibly pave the way for a counterclaim on your part (breach of DPA - no reasonable cause to access your data from the DVLA is one possible option). More on that nearer the time, there may be other options - harassment, unreasonable behaviour?

If you are served with a formal court claim, it's at the defence stage you need to issue a counterclaim - a breach of the DPA, general figure is ~£500 - and you will need to enclose the filing fee payment (£25 for up to £300, £35 for up to £500) with your defence/counterclaim. You can't issue a counterclaim further down the line, you need to strike, or forever hold your peace (and miss your chance!).

Issuing a counterclaim means they have to defend, they can't just slink away by discontinuing at the last minute (as many PPCs do when they don't really have any claim), with you having no redress despite all the work you have had to undertake to defend.

Le_Kirk

Couldn't better Umkomaas's response!

DAngel

SCS must be loving this... Glad that you've got your wheels in motion.... i'm probably going to be pinching parts of your latest letter - which is brill by the way!

CVKTA

Umkomaas & Le_Kirk thank you for your input. Massively appreciated.
DAngel, feel free! Unity in numbers! Good Luck!

CVKTA

Morning all,

Response received from SCS Law:

Re: UK Parking Control Ltd

I write further to your email and letter dated 14 March 2019.

Before our client is able to comment on the points you have raised within your email and letter fully, we request that you provide a full copy of the leasehold agreement. Our client is unable to assess the excerpts you have provided without considering the full document.

Upon receiving the above, we can advise our client accordingly and respond to the substantial points you have raised.

In response to your request that all correspondence is documented by post and email, it is our position that it is unreasonable to do so. We request that all correspondence be conducted by either email or post moving forward.

Please confirm which method of correspondence you would prefer.

I look forward to receiving your response in due course.
Yours sincerely,

I've already provided them with scanned copies of the relevant section. Do I continue with sending the whole thing or tell them that if they wish to see it then they will have to find it elsewhere??

Thanks, CVKTA

Umkomaas

Write back and tell them that if their client had undertaken a full and professional due diligence assessment of the estate when selling their services and signing a contract with the MA, you would expect them to already have such a document in their possession.

(If correct....) tell them that the rest of the lease is generic to all residences and as their client should have a copy following their due diligence, there is no need for you to supply them another.

See if others have anything to add/alternative suggestions.