Fined for parking in own leashold space

Jonsunrise

I have been fighting a fine for parking our car in our leasehold space and not displaying a permit.
Readers to this site will understand the background viz - the lease agreement (dating from the 1970s and
unchanged) does not require a permit. We have been living here since 2013. The Parking conditions were
unilaterally imposed 2 years ago. We were not told we could opt out/ opt in etc etc by management
company who wanted us to go along with it. Now we are paying the price having not displayed the said
(over large) permit. We have been fighting this since February. If anyone can help with answer the following
four questions I would be most grateful.
(1) The Parking Co say: "

"What is clear however, is that the appellant had demonstrated a willingness to enter the obligations of the parking scheme by previously displaying a permit...……...

 This was noted within the operator’s rejection to the appellant’s internal appeal which stated that by displaying a permit, one demonstrates their intentions to be bound by the terms of this permit."

QUESTION: How do we counter this argument?

(2) We have accused the Parking Co and the Management company of collusion in trying to subvert the terms of our lease. They have come up with the following mumbo jumbo:

"Ultimately, there are two contractual agreements at play – the lease document and the contract entered and agreed to by parking. While these agreements are

compatible, they are not formally linked in terms of one constituting a variation of the other. 

The parking scheme should be seen as working alongside the rights granted with the lease documents and as a means to protect these rights. Generally speaking, save for very few cases, lease documents will contain clauses that allow for the implementation of parking controls – whether explicitly or by means of authorising a management company to take such decisions."

QUESTION: How do we counter this argument?

(3) Given what has happened so far we can see this ending up at the County Court.

QUESTION: Assuming we lose are there other costs we would incur in addition to the £100 the Parking Management company is claiming from us?

At what stage in the process could they instruct bailiffs? (Their letters already imply they can do that now, but I am sure they cannot do it without a court ruling - can they?)

(4) As regards our lease, aspersions are already been cast about the fact we have chosen not to forward our lease for examination. I know from others that where this has been done in the past the Parking Company always latch onto one clause and interpret that as supporting their claim, regardless of whether the clause is actually relevant.

QUESTION: When is the time to submit a lease for inspection? Should it wait until County Court?

Thank you for any feedback.

Jon

Coupon-mad

Jonsunrise said:
I have been fighting a fine for parking our car in our leasehold space and not displaying a permit.
Readers to this site will understand the background viz - the lease agreement (dating from the 1970s and unchanged) does not require a permit. We have been living here since 2013. The Parking conditions were unilaterally imposed 2 years ago. We were not told we could opt out/ opt in etc etc by management company who wanted us to go along with it. Now we are paying the price having not displayed the said (over large) permit. We have been fighting this since February.

If anyone can help with answer the following four questions I would be most grateful.

(1) The Parking Co say: "What is clear however, is that the appellant had demonstrated a willingness to enter the obligations of the parking scheme by previously displaying a permit...……...This was noted within the operator’s rejection to the appellant’s internal appeal which stated that by displaying a permit, one demonstrates their intentions to be bound by the terms of this permit."
QUESTION: How do we counter this argument?

By arguing that
(1) the permits were unsolicited, and arrived with no obligation or risk of a £100 charge known or agreed, and  

(2) the lease dates back to the 1970s and thus a right or easement exists 'by prescription' (more than 20 years).

(3) And that nothing of value was being offered that the resident did not already have i.e. no consideration flowed between the parties and so the elements of an agreed contract were absent, and that a consumer term cannot be deemed accepted by inaction or silence - ref Felthouse v Bindley:

https://en.wikipedia.org/wiki/Felthouse_v_Bindley

The doctrine is explained in this book:
https://books.google.co.uk/books?id=fAYqDwAAQBAJ&pg=PA62&lpg=PA62&dq=consumer+term+not+accepted+by+inaction+silence+felthouse&source=bl&ots=Tu2mvtq3jR&sig=ACfU3U3mwipFMThfxCJP3uRtVRRjcjAuwA&hl=en&sa=X&ved=2ahUKEwj9_4XOwpDpAhUYHcAKHQfnCJIQ6AEwCnoECAcQAQ#v=onepage&q=consumer%20term%20not%20accepted%20by%20inaction%20silence%20felthouse&f=false

Generally speaking, save for very few cases, lease documents will contain clauses that allow for the implementation of parking controls – whether explicitly or by means of authorising a management company to take such decisions."
QUESTION: How do we counter this argument?

Ask them to show you their investigation and conclusions they drew before enforcement began, when they studied the leases that exist at this location and what clauses they are relying upon to implement parking terms.  They won;t have done anything and they will ask YOU to produce your lease - it will be helpful if you do...but ask them the above first, to put them on the spot.

You and your neighbours should NEVER EVER have accepted these permits, or displayed it, and should have opted out even though no such option was offered.  It is not too late, here is how to do this for leaseholders, including an example template letter to adapt & send to the Managing Agents:

https://forums.moneysavingexpert.com/discussion/5997200/pcm-company-introduced

(3) Given what has happened so far we can see this ending up at the County Court.
QUESTION: Assuming we lose are there other costs we would incur in addition to the £100 the Parking Management company is claiming from us?

The risk is minuscule and you will not lose.  £100 PCN plus fifty quid in court fees, plus max fifty quid solicitor/legal costs are in play.  Max £150 - £200, that is ALL.  And that's if you lose, and almost no-one does on this forum.  We have a 99% court win rate since 2017.

You should all consider threatening to sue the parking firm and Managing Agents...!  Costs you the princely sum of £25 to file a claim online via MCOL, after sending a Letter before Claim to all parties first...setting out the cause of action.

At what stage in the process could they instruct bailiffs? (Their letters already imply they can do that now, but I am sure they cannot do it without a court ruling - can they?)

Bailiffs can only be instructed if you:

(a) fail to follow court direction; i.e. don't defend, fail to file & serve a DQ, or evidence, etc.  AND/OR

(b) if you lose at a hearing, AND you get a CCJ after 30 days has passed, AND THEN if you haven't paid within 30 days, the sum a Judge ordered at the hearing, THEN they could send it to bailiffs. 

Not going to happen, not in a million years even if you were in the 1% here who lose their case!

They are talking about debt collection agents =  just letters.  Not bailiffs. 

No-one can come knocking, pre-court.

(4) As regards our lease, aspersions are already been cast about the fact we have chosen not to forward our lease for examination. I know from others that where this has been done in the past the Parking Company always latch onto one clause and interpret that as supporting their claim, regardless of whether the clause is actually relevant.
QUESTION: When is the time to submit a lease for inspection? Should it wait until County Court?

Do it now/soon (as it looks reasonable) but after asking them the question I posed above that puts the onus on them to have already checked.  They should have checked first, because they run the risk (as has happened) of interfering with your quiet enjoyment of your properties, and illegally subverting the lease.

Your concentration should be on sending a LBC to the Managing Agents, signed by ALL the leasehold neighbours you can rally round.  You are at home and so are they, so strike while they are at home and put a note in their postboxes and set up a joint WhatsApp group, facebook group etc, and show them the law (s37 of the Landlord and Tenant Act 1987).  

Get together and reject the permit scheme en masse, and make it clear NONE of you accepted it and none of you were consulted, which is against the law so the parking scheme is void.  And you require the signs and parking firm to be removed because they are causing a 'private nuisance' and breaching your rights and easements that exist in various forms, including 'by prescription' (i.e. the parking right has been established and used by residents for over 20 years) given that the leases have existed since the 1970s and have not been varied.

Le_Kirk

Before the parking conditions were IMPOSED was a consultation of the leaseholder/owners/tenants undertaken followed by a vote of all involved which culminated in 75% agreeing and not more than 10% disagreeing?  You only agreed to display a permit out of courtesy and you have now decided, as the parking company cannot override the rights granted by your lease, to no longer display the permit.

Umkomaas

Which parking firm - UKCPM?

Jonsunrise

Thanks for these posts. The information you are sharing is really helpful. You have also encouraged me to go in challenging this.
There was no consultation at all from our management company who delegated it wholesale onto the Parking Company, who is called Parking Control Management (based in Slough). They sent us two letters before the scheme started - we were not even in the country when it started!  We were very green and assumed that we were helping the management company, that plans had been made should anything like this happen, and that what we see as errors could be quickly resolved!!!

The management company have confirmed (in writing)  that they are not paying PCM anything and that they get all their revenue from fines. The management company also confirmed (in writing) that our lease has not been changed. 

The bit about the fact PCM is not contributing anything is all the more clearer since our space is behind a password controlled barrier that is well maintained!

I will start work on our defence and will come back with any queries should they arise.

Thank you so much again..

Le_Kirk

You need to start work on the Management Company and tell then to remove PCM from the premises.  They bring nothing to the party and can offer you nothing more than your lease already grants.  If your vehicle is behind a password controlled barrier, the "ticket monkeys" from PCM are trespassing.  Speak to other tenants/leaseholders and get together to INSTRUCT the MC to remove PCM.  As a minimum, until they are removed, you require your VRM to be on a white list.  You expect no more PCNs and you require this one to be cancelled.

Coupon-mad

The MSE thread link I showed you was to a PCM site where the residents rejected the scheme. 

There cannot be a better time than now, for 'at home' communities at flats beleaguered by rogue ex-clamper PPCs like PCM, to do something proactive about the scams and rise up together and send the Managing Agents a letter like the one in the linked thread I gave you. 

You can copy it almost word for word, that;s why I gave you that thread.  It;s not just people grumbling about getting unfair PCNs, it's leaseholders who signed a letter and got PCM removed and covered up their signs with binliners.

The sooner you all send this as leaseholders (or as many as you can get on board) the better.

D_P_Dance

Sone reading

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

http://parking-prankster.blogspot.com/2016/11/residential-parking.htmlantsot

What does your lease/AST say about parking? Does it mention the need to display a permit? then it may take primacy over the self serving TnC of the scammer, and interfere with your lawful right to “quiet enjoyment” of your property, possible an offence under The Landlord and Ten Acts.

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the enacted

Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Jonsunrise

Thanks for all these comments. I think the answer is implicit in the context but could someone please explain what a 'white list' is?

Ralph-y

the opposite of a black list

a white list in cases such as this would be a list of registrations that are allowed / exempt/ free from any parking regulations/ scams

Ralph

Le_Kirk

Jonsunrise said:

Thanks for all these comments. I think the answer is implicit in the context but could someone please explain what a 'white list' is?

The opposite of a black list where you are prevented from doing something, like entering a pub because you've been barred, or joining a particular club, a white list is a register of cars/VRMs or people that ARE allowed to do certain things like park in their own space.