Defending for a first time

Ralf99

Just don’t know how the Judge can see it

NeilCr

So you as a resident used a visitors permit and then parked outside a visitors bay?

I know you've quoted the common parts part of the lease (and right to park) but is there anything, specifically, in the lease about parking away from this - and/or defining what right to park means?

Ralf99

That’s correct. I’m a leaseholder and my wife and I parked the car outside the bay.
The Lease easement allows me to use the common parts without specifying how. Common parts are defined as:
“The entrance landing lifts staircases access road car park and other parts (if any) of the Building and any garden appurtenant to it which are intended to be or are capable of being enjoyed or used by the Leaseholder in common with the occupiers of the other flats in the building “

NeilCr

Do you have your own dedicated parking bay - and, if so, is that mentioned in the lease and what does it say about it?

Ralf99

No. There’re 7 bays all together. 5 dedicated as a part of the Lease and two visitor bays for visitors. I do not have s dedicated bay as I have a garage.

Ralf99

There’s a leaseholder covenant in the Lease to prevent loss of easements saying:
“ To do such acts and things as may reasonably be required by the Landlord to prevent any easement of right belonging to or used with the Premises from being obstructed or lost and not knowingly to allow any encroachment to be made on or easement acquired over the Premises and in particular not to allow the right of access of light from or over the Premises to any neighbouring property to be acquired “

I can provide a letter from the owner of a garage opposite the place we’ parked that we were not obstructing it. Beside the claim is for a breach of parking contract not breach of Leasehold Agreement. Do I understand it right?

NeilCr

The point is that what's in the lease can sometimes override any parking contract. It's often a "way out" for residents on private estates. That's why you were asked about it.

I have to say that on a couple of estates I know you'd be hung, drawn and quartered for using a visitors space for your (I assume?) second car!

I am not entirely sure that your use of the car park and quiet enjoyment clause extends to parking where you want to. Here, if all the cars in the car park that got sap on them were moved there would be chaos. But I am not a legal person nor am I as up on the intricacies of PPCs as some of the regulars here.

I'll leave it to others to comment further.

Ralf99

Thank you NeilCr for your valid comments. My second line of defence is contradicting and incorrect signage making the contract impossible to perform. I hope that this will be my saviour.

Ralf99

After NeilCr’s comments i’ve changed my defence for the one below

Ralf99

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

DEFENCE
________________________________________

Preliminary

1. It is denied that the Claimant has any entitlement to the sums sought as there is no contract between Claimant and Defendant.
Reasons why the alleged contract cannot be honoured are:
i) Primacy of Contract. Leasehold Agreement between the Defendant and the Landlord allows Defendant to use common parts without restrictions and regardless of conditions imposed by the Claimant. Claimant is not a party to this agreement and cannot change it in any way.
ii) Impossibility of Performance. The conditions set on the signage are impossible to comply with because there’s no valid parking permit issued to residents. Honouring the alleged contract would allow the Claimant to charge the residents every 24 hours.
iii) Misleading and inadequate signage. One sign is saying “residents parking only “ and the other is offering parking to the general public and trespassers for a fee. Signage was not present in the area of the car park where car in question was parked.

2. The Particulars of Claim lack specificity and are not factual. 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.

3. The Claimant provides conflicting information whether he’s pursuing the charges from a driver or a registered keeper. Claimant is also refusing to provide a proof of authority to pursue the claim in court.

4. Defendant denies that he agreed to pay the charges as stated in the Particulars of Claim. The Defendant was trying to reach an agreement with the Claimant in order to avoid the harassment and aggravation but the Claimant has refused.

5. The Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 per day parking charge on the same basis to residents, as is on offer to the general public and trespassers. The Claimant is also charging £5 for a replacement permit if it gets damaged. This interferes with the terms of Leasehold Agreement First Schedule – Mutual Covenants (1) stating:
“Not to use the Premises nor permit the same to be used for any purpose whatever other than as a private residence in single occupation only nor for any purpose from which a nuisance can arise to the owners lessees or occupiers of the other premises in the Building or of premises in the neighbourhood.”
However, residents are granted a right to park, rights of way and peaceful enjoyment under a Leasehold Agreement Landlord’s Covenant (1) and Easement Second Schedule (1). Parking terms under new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases none of which is the Claimant a party to, and neither have they checked for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property and his use or enjoyment of that land/property.

Background

6. Defendant is a Leaseholder of the land, paying the ground rent and a holder of the visitor parking permit issued.

7. Defendant is one of the named drivers of the vehicle registration mark XXZZZ, which is the subject of these proceedings, and is permitted to use it.


Authority to Park and Primacy of Contract

8. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant, permitting the above mentioned vehicle to be parked, by the current occupier and leaseholder of [address], whose leasehold agreement permits the parking of vehicle on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the visitors bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

9. The Defendant avers that the operator’s signs cannot
(i) override the existing rights enjoyed by residents and their visitors and
(ii) cannot retrospectively and unilaterally restrict the parking easements where provided for within the lease. This would be a breach of the well known and well established principle that a grantor shall not derogate from his grant. The Defendant will rely upon:
- Link Parking v Ms P C7GF50J7 [2016]
Judge Louise Metcalf dismissed the claim as parking company could not override the tenant’s right to park by requiring a permit to park.
- PACE Recovery & Storage v Mr N (C7GF51J1),
District Judge Coonan states: ‘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.….. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’.
- UKPC v Mr Aziz Birmingham 9/1/2017 C2HW01A6.
DJ Gibson dismissed the claim on the basis UKPC did not have authority to override the lease and issue charges.

10. Accordingly it is denied that:
10.1. There was any agreement as between the Defendant or driver/keeper of the vehicle and the Claimant
10.2. There was any obligation (at all) to comply with the signage erected by the Claimant; and,
10.3. The signage on the car park can create a valid contract; and,
10.4. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Parking terms impossible to meet and inadequate signage.

11. The parking bays marking doesn’t match the bay identification on the parking permits hence there is no valid parking permit existing.
11.1. Parking Conditions imposed by the Claimant require displaying a valid permit which is impossible to comply with throughout no fault of the Defendant.
11.2. Given the above if there was any contract it is invalid under the doctrine of impossibility of performance.

12. The Claimant has provided a map with alleged signage location. This is not factual and there was only one sign out of four claimed on site at the time of alleged contravention. Sign was referring to the left hand side of the car park which is divided by the access road. The vehicle in question was parked on the right hand side of the car park which wasn’t signposted at all.
12.1. There’s a conflicting signage at the car park in question. One sign is saying “residents parking only “ and the other offering parking to the general public and trespassers for a fee. Inadequate and misleading signage does not create a contract. The Defendant will rely upon UKPC v Kapasi C6HW2J0P.


13. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, after passing the claim to a Debt Recovery Plus Ltd, for which no justification has been provided. In the Particulars of Claim it is said that £60 is a contractual cost yet there’s no mention of it on the signage which allegedly created the contract. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

14. 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.

15. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.


I confirm that the contents of this Defence are true.