Complaint to management company owned by residents (me)?

WokAlot

Many thanks for the correction!  I guess my memory isn't what it used to be.

I have come to write to PCM and send my lease today but I have a concern.  My lease is made up of the original lease and several deeds of variation.  Some of these deeds of variation show the lease being registered to the new occupier.  The problem is I don't have one of these showing the lease has been transferred to me.

So the appropriate part of the lease which mentions parking (and all other parts of the lease I hold) doesn't have my name as the lessee.  Is this a problem?  Should I go to my conveyancers first and find this document with my name on it?

I had written a full response before I realised this so I might as well share this here:

Following a telephone conversation with one of your PCN team representatives on [DATE] I am using this appeal form, as per their instruction, to provide you with a copy of the [YEAR] lease for [MY ADDRESS].  This is the relevant part of the lease which refers to the parking space in question.

You should already have a copy of this as it would be required for you to understand the rights of the residents upon which you are imposing your parking contract.

This lease has primacy of contract over any parking contracts you may have and as can be seen there is no mention of requiring a permit or being charged to park in the parking space where the PCN was issued.  The relevant clause is as follows:

2 (a) a right to park a motor vehicle on the parking space shown edged orange and numbered as indicated in the Schedule hereto on the plan annexed hereto and together with a right of way at all times and for all purposes with or without vehicles over and along the roadway edged mauve and access hatched green on the plan annexed hereto

I am the legal occupier and I have rights to ‘peaceful enjoyment’ of my space.

If you refuse to cancel the PCN prove your parking contract has primacy by providing the following:

A full unredacted copy of any agreements that provide evidence that you have lawful authority to operate on this land with traceabilty all the way back to the landowner.

A full unredacted copy of the parking contract which has primacy.

As per the Landlords & Tenants Act 1987: Section 37 evidence of the leaseholders agreement to change the leases where it is not opposed for any reason by more than 10 per cent. of the total number of the parties concerned and at least 75 per cent. of that number consent to it.

A full unredacted copy of the deed of variation describing the changes to the lease.

Any other evidence you have proving your parking contract has primacy.

Additionally as a shareholder of the management company please answer the following questions such that we can review your performance at our next AGM.

Why wasn't this PCN cancelled when you realised the vehicle is registered to the address for which the parking space is intended?

Why do you have no leniancy for permits which are not fully visible and why do you not cancel the PCN when you realise the vehicle owner is a permit holder?

Why wasn't this PCN cancelled when the residents of the address in question opted out of parking management?

Why don't you hold a record of whitelisted vehicles instead of or in addition to requiring a permit?

I will be raising the following point at the AGM:

It is clear that in this case PCM are trying to charge a resident for using their own parking space.  It should not be the case that the purpose of PCM or any other parking management company is to charge residents to use their own space.  It should be their purpose to ensure residents can use their own space without obstruction.

If you have any comment on this point please provide it.

WokAlot

This has progressed further now and as of the latest development I can't sleep so thought I would return here for more advice to hopefully ease my mind.

PCM have now set the debt collectors on us however I have been able to open a reasonable discussion with the management company.

In brief the MC said they had tried to cancel a PCN for another resident but PCM wouldn't let them.  After applying some more pressure they asked to see my lease.  After seeing my lease they have told me that the land which the parking spaces are on is leased to the MC and they have the right to implement a parking control contract on these spaces if they want to.  Because my lease only says I have a right to park in my space and doesn't say that I own my space the PCN can't be cancelled and I will have to pay it.

Is that true?

I think yes they can bring in a parking contract but that doesn't change my lease, which still has primacy of contract and because it doesn't mention permits and charges the PCN is bogus.  But I want to check it with you guys because this is looking like this will ultimately go to court and I can't sleep!

Coupon-mad

As you are awake, read today's thread by lamilad!  You will see why. 
It is an appeal decision, therefore persuasive on lower courts.  A transcript will be ordered.

Also, while I have your attention (are we the only two posting at this hour?):

Please now make a real difference - A TASK FOR SEPTEMBER.

The Government is (this month only) consulting about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

Please be heard.

Fruitcake

The case referred to by C-m turned on the wording of the lease, not ownership of the parking space.
If your lease says you have exclusive use of the parking space, or an unfettered right to use it, or the right to quiet or peaceful enjoyment, then this cannot be taken away by an unregulated third party scammer, irrespective of who employed them.
The word exclusive or similar means you and only you have the right to use it. Saying you can't use it unless you display a permit, or can't use it on Tuesday's, or can't park a blue car there would make in no longer exclusive.
Even if the word exclusive is not used, simply stating you have the right, or use of the space gives you exclusive rights unless your lease has a clause to the contrary.
What the lease doesn't say is just as important as what it does say.

Taking away your existing rights is a derogation of grant. 

D_P_Dance

Have you considered a counter against the PPC for harassment/data breach/ interference with "quiet enjpyment" rights?

Hav you read this?

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

.Have you contacted your MP?

WokAlot

Thanks again that post from lamilad is a good read.  Worrying that the initial judgement went to the PPC based on my exact issue - the space is not demised but a right is given to park.  Great that the appeal was succesful based on primacy of contract.  One difference here is my lease doesn't state an exclusive right, just a right.

2 (a) a right to park a motor vehicle on the parking space shown edged orange and numbered as indicated in the Schedule hereto on the plan annexed hereto and together with a right of way at all times and for all purposes with or without vehicles over and along the roadway edged mauve and access hatched green on the plan annexed hereto

Maybe that helps or maybe it doesn't, I don't know.  What I do know is that there are no conditions on this clause and there is nothing to say the right is not exclusive.

Something else I came across which has helped put my mind at ease is this Pace VS Mr N.  Which is a judgement where the judge says:

I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. 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. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.

I think if the MA come back again and tell me that I need to pay I will link them to Pace VS Mr N as it summises my argument perfectly but not in my own words - in the words of a judge!

Yes I have thought about making a counter claim against both the PPC and the MA.  I think if things go to court I will get a solicitor even if this will cost me more money.  For me it's about the principle of the thing.

Coupon-mad I had a look at the standards docs and made an account but couldn't work out how to comment.  I could only download the docs and then the link in the doc to comment took me back to the page where I had downloaded.

Fruitcake

I doubt a solicitor knows as much about parking charges as the regulars on here. If you lose, you will have to pay their costs as well.

The fact that the word "exclusive" does not appear in your lease is not fatal. It does not say you have the right to use the space but a third party scammer has the right insist you have to display a permit and can demand money if you don't.
What it doesn't say is just as important as what it does say.

KeithP

Fruitcake said:

I doubt a solicitor knows as much about parking charges as the regulars on here. If you lose, you will have to pay their costs as well.

That's very true Fruitcake.

The OP should also bear in mind that even if he wins the case, his solicitor's costs will need to be paid by him - not the Claimant.

Le_Kirk

WokAlot said:

Coupon-mad I had a look at the standards docs and made an account but couldn't work out how to comment.  I could only download the docs and then the link in the doc to comment took me back to the page where I had downloaded.

Once you are in the BSI document, click on the individual clause reference numbers (on the LHS side-bar) and that will open them up, select the one you want to comment on and then click on the Add/View comment (slightly to right of centre of page).

Coupon-mad

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

Please be heard.  You can bet the hundreds of PPCs will be commenting.

No apologies for repeating this vital 'call for action' to consumers, on every thread this month!