Beavis case in relationship to own property

hob63

[FONT=&quot]Hi all,[/FONT]
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[FONT=&quot]I own a flat with associated underground secure parking space (leased) bay. I am currently in discussion with a legal team appointed under my home insurance relating to the matter. It is important to note that the management agency and landowner (currently) are in agreement that the lease agreement for the bay is the binding agreement for the space and they cannot pursue me for any PCN’s issued, (they did attempt to take me to court prior to this using UKPC before cancelling the claim).[/FONT]
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[FONT=&quot]The following is simply my investigation into the legal aspects to ensure, that should their view change (and they do try to pursue) I am still within my legal rights to enjoy the space. I was hoping upon appointment the lawyer would look through this case and provide a solid statement to myself for future use. The issue is (as I'm sure everyone is aware) as these are via a 'probability of success' basis they are trying to find the quickest route to dismiss and move on from the claim, so now I am in debate with my home insurance legal team on the legality of the actions of the landowner.[/FONT]
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[FONT=&quot]The lease agreement has the usual information, the key wording (from the perspective of the legal team is the following):[/FONT]
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[FONT=&quot]“Acting reasonably at all times the Lessor shall have authority to make and at a time vary such Regulations as it may think fit for the preservation of the amenities of the Block or for the general convenience of the occupiers of the Dwellings”[/FONT]
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[FONT=&quot]The legal team have stated: by erecting signage (UKPC standard signage [sic]) they have modified the regulations of the lease agreeemnt and therefore I must abide by these new regulations.[/FONT]
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[FONT=&quot]They follow on to cite the Beavis case for the right to enforce liquidated damages due to the breach of contract formed by the signage mentioned above.[/FONT]
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[FONT=&quot]From my perspective, I cannot see how by breaching the signage (such as failure to display a parking permit) I have to pay ~£100, given that I pay for the parking space and for the management fees associated with the parking area. In addition, I was not aware that erected signage can be classified as modification to the lease agreement? If it does, do I need to continue to obey the current lease regulations (such as only parking one vehicle in the bay) which is not detailed in the UKPC regulations, or does it simply append to the lease agreement?[/FONT]
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[FONT=&quot]Any help on the matter is greatly appreciated,[/FONT]
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[FONT=&quot]Hob
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Coupon-mad

We agree. Search the forum for Landlord & Tenant Act consensus (ADVANCED SEARCH of this forum only) and read all the threads about it!

beamerguy

The legal team have stated: by erecting signage (UKPC standard signage [sic]) they have modified the regulations of the lease agreeemnt and therefore I must abide by these new regulations.

They follow on to cite the Beavis case for the right to enforce liquidated damages due to the breach of contract formed by the signage mentioned above.

UKPC cannot change your lease agreement, they are only agents working on behalf of the MA. By them quoting Beavis is a lot of rubbish and they have zero understanding

Barry Beavis took Parking Eye to court because he claimed
the charges were unfair. The court said they were ... and
that was it.

Nothing whatsoever to do with breach of contract, Barry claimed the charge of £85 was unfair.

Whilst you do not agree with £100, your case is about your MA placing UKPC in charge of parking when you have a lease that includes parking.

Fruitcake

First of all, UKPC are proven scammers. They were caught doctoring time stamps on their photo' "evidence". Since they are a fraudulent company, employing them is an unfair contract term.

This needs highlighting to the MA and your legal team.

Secondly, as already mentioned, your lease/AST has primacy of contract over any third party scammer.

Thirdly, the judges in the Beavis case were quite clear that their decision concerned an overstay in a retail car park and specifically, it does not cover an own space situation. You need to find that part of the Beavis judgement.

You should also get your MP involved in this outrageous unregulated scam.

The_Slithy_Tove

beamerguy wrote: »

The legal team have stated: by erecting signage (UKPC standard signage [sic]) they have modified the regulations of the lease agreeemnt and therefore I must abide by these new regulations.

UKPC cannot change your lease agreement, they are only agents working on behalf of the MA.

Further, even if they did change the regulations (which, BTW, require something like a 75% majority of leaseholders after a consultation), what is the "remedy" for a breach? It can't possibly to pay a third party stranger to the lease (a PPC) some sum of money.

hob63

[FONT=&quot]All, thanks for your replies[/FONT]

[FONT=&quot]

Coupon-mad wrote: »

We agree. Search the forum for Landlord & Tenant Act consensus (ADVANCED SEARCH of this forum only) and read all the threads about it!

[/FONT]

[FONT=&quot]Thanks, with regards to Section 20 we were not consulted with regards to the long term appointment of UKPC to manage the site, we were simply issued with an updated information pack to tennants containing this appointment.[/FONT]
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[FONT=&quot]I have noted this point for future correspondence. I did ask this point (unilaterla modification to the lease without agreement) to the legal team, however, it was glossed over.
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beamerguy wrote: »

The legal team have stated: by erecting signage (UKPC standard signage [sic]) they have modified the regulations of the lease agreeemnt and therefore I must abide by these new regulations.

They follow on to cite the Beavis case for the right to enforce liquidated damages due to the breach of contract formed by the signage mentioned above.

UKPC cannot change your lease agreement, they are only agents working on behalf of the MA. By them quoting Beavis is a lot of rubbish and they have zero understanding

Barry Beavis took Parking Eye to court because he claimed
the charges were unfair. The court said they were ... and
that was it.

[/FONT]

beamerguy wrote: »

[FONT=&quot]
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[FONT=&quot]Nothing whatsoever to do with breach of contract, Barry claimed the charge of £85 was unfair.[/FONT]
[FONT=&quot]Whilst you do not agree with £100, your case is about your MA placing UKPC in charge of parking when you have a lease that includes parking.[/FONT]

[FONT=&quot]UKPC were most likely appointed on behalf of the landowner rather than the MA, they (the legal team) argue even if they were appointed by the MA there is most likely a contract giving them power to do so (there isn't and is a point that even the MA do not dispute).[/FONT]

[FONT=&quot]The point I personally believe they are trying to argue is with regards to the Beavis case from the SC ruling (I believe this is the ruling: uksc-2015-0116[/FONT][FONT=&quot]) is the application of commercial justification with application to a consumer contract.[/FONT]
As I understand it, charges which had been agreed in advance, payable on breach of contract, were disallowed as unlawful penalties unless they could be justified as a genuine pre-estimate of loss. The ruling removes that rule and says that deterrent charges will be allowed if there is some commercial justification for them.
[FONT=&quot]They (I believe) are arguing that the it is a breach of the contract (with penalty for breach of contract) formed by the signage, which itself is a modification to the lease agreement (permittable under the clause of the lease) and conditions for parking. [/FONT]

[FONT=&quot]They in particular note the following from the Beavis ruling:[/FONT]

[FONT=&quot]Is there a legitimate interest to be served and protected by the clause and if so, is the provision purporting to serve that interest out of proportion (by being extravagant, exorbitant or unconscionable)? [/FONT]

[FONT=&quot]Which they believe serves a legitimate interest (to prevent misuse of the bays) and isn’t exorbitant (£100). [/FONT]




[FONT=&quot]

Fruitcake wrote: »

Thirdly, the judges in the Beavis case were quite clear that their decision concerned an overstay in a retail car park and specifically, it does not cover an own space situation. You need to find that part of the Beavis judgement.

[/FONT]

[FONT=&quot]Agreed, I have asked for the justification of the charges and they have not answered this point.
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[FONT=&quot]Could they (the legal team), however, argue commercial justification, through say a reduction of management fees that would be associated with the monitoring of the parking bays through use of a penalty system to non-complying tenants?[/FONT]
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Coupon-mad

As I understand it, charges which had been agreed in advance, payable on breach of contract, were disallowed as unlawful penalties unless they could be justified as a genuine pre-estimate of loss.

Far from it!

The GPEOL argument was crushed. The complete opposite was held to be the case.

Umkomaas

Much of the Beavis case was on the basis of the turnover of car park spaces in order to provide continuing fresh footfall for the benefit of retailers.

Not much of that fits with a residential setting!

hob63

[FONT=&quot]

hob63 wrote: »

[FONT=&quot]
[/FONT] As I understand it, charges which had been agreed in advance, payable on breach of contract, were disallowed as unlawful penalties unless they could be justified as a genuine pre-estimate of loss. The ruling removes that rule and says that deterrent charges will be allowed if there is some commercial justification for them.

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Coupon-mad wrote: »

Far from it!

The GPEOL argument was crushed. The complete opposite was held to be the case.

[/FONT]
[FONT=&quot]
[/FONT]Correct, that is what I posted?


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hob63

Umkomaas wrote: »

Much of the Beavis case was on the basis of the turnover of car park spaces in order to provide continuing fresh footfall for the benefit of retailers.

Not much of that fits with a residential setting!

Agreed, however, with regards to contract law I'm a little lost (if there is any applicable case law) as to the stading on modification to the lease agreement (as the lease is allowed to be varired) via signage?


At the moment that seems to be the main basis for the legal team, the Beavis ruling I believe they are using as justificaiton for the ammount to be reasonable (£100) and not require GPOL. In terms of miing and matching case law, again I'm not sure if you can pick out applicable rulings from unrelated cases (commercial vs. residential).

Coupon-mad

Sorry I do skim read, due to the sheer number of threads I read and post on every evening. Your first sentence said the opposite:

As I understand it, charges which had been agreed in advance, payable on breach of contract, were disallowed as unlawful penalties unless they could be justified as a genuine pre-estimate of loss.

I would have understood it if you'd said 'in the past', or 'the Beavis case removed the historical idea that...' My bad, skim reading.

I was just trying to stop you thinking GPEOL was an argument. Glad you know!