Restrictive Covenants - parking on a local highway

Ditzy_Mitzy

Bonniemarie said:

Ditzy_Mitzy said:

Bonniemarie said:

Ditzy_Mitzy said:

On the face of it, it seems like the management company is wrong.  Allowing the road to be adopted changes its legal status from private road to public highway, ergo the covenants applicable to it when it was a private road no longer apply.  It is subject only to the normal laws governing roads: Highways Act, Road Traffic Act etc.  The management company can't have it both ways, i.e. keeping the powers available to the private road owner without the responsibilities that go with it.  If they wanted to restrict parking in ways that parking cannot be restricted on the highway, they should have retained ownership of the road.  

Thank you. The roads were adopted under section 38 of the Highway Act. The local highway authority’s letter says exactly this - that it is for use of both residents and public free from private restrictions. It just seems daft how someone is still trying to enforce this and we are being charged for the letters we are being sent to tell us not to park there. 

In which case the management company has about as much authority as Mrs Goggins from Number 38, i.e. none, when it comes to enforcing parking.  They do not own the highway.  We do.  It's our public good.  
You've mentioned a lease and, I presume, there were conditions under said lease regarding parking on the estate roads as they then were.  At that point the management company represented the freeholder, so could dictate terms.  By allowing adoption, ownership has passed to the public, and control ceded to the Highways Agency and local authority.  It's not their road any more.  
Attempting to charge you for writing entirely illegitimate letters is laughable.  I'd keep them, just in case, but am fairly certain that nothing is going to happen.  A lease is a contract between landlord (freeholder) and tenant.  The landlord has removed itself from the equation by giving up the land.  

This is exactly how we feel and what everyone involved has said. However, the £165 charges are added to the service charges / charged to our property for their ‘time’ having to write the letters to us. We need to have these charges removed and we need to stop the charge letters. I am worried about them trying to take an injunction out against us to ensure we do not park the van as they have said we will incur all costs. It has taken a considerable amount of my time too and I just need them to stop now as it makes living in our ‘dream’ home unenjoyable. Thank you for your help, have you ever been in this situation or known of anyone who has?

You're welcome.  I've not been in such a situation and, I suspect, very few others have as it won't come up very often.  The management company is simply wrong and their follow up is amateurish at best.  They can't take out an injunction because there's nothing in civil law to prevent you parking a van on a public highway.  The only ones with any power over the highways are official bodies: local authority, Highways Agency, the police, VOSA, DVLA etc.  You would either need to commit a criminal offence or fall foul of a Traffic Regulation Order to arouse their interest.  It isn't private land and there's nothing to sue you for.  
I can only suggest speaking to a solicitor about the charges as you'll have to take action to get the money back.  

User_220321

Ditzy_Mitzy said:

Bonniemarie said:

Ditzy_Mitzy said:

Bonniemarie said:

Ditzy_Mitzy said:

On the face of it, it seems like the management company is wrong.  Allowing the road to be adopted changes its legal status from private road to public highway, ergo the covenants applicable to it when it was a private road no longer apply.  It is subject only to the normal laws governing roads: Highways Act, Road Traffic Act etc.  The management company can't have it both ways, i.e. keeping the powers available to the private road owner without the responsibilities that go with it.  If they wanted to restrict parking in ways that parking cannot be restricted on the highway, they should have retained ownership of the road.  

Thank you. The roads were adopted under section 38 of the Highway Act. The local highway authority’s letter says exactly this - that it is for use of both residents and public free from private restrictions. It just seems daft how someone is still trying to enforce this and we are being charged for the letters we are being sent to tell us not to park there. 

In which case the management company has about as much authority as Mrs Goggins from Number 38, i.e. none, when it comes to enforcing parking.  They do not own the highway.  We do.  It's our public good.  
You've mentioned a lease and, I presume, there were conditions under said lease regarding parking on the estate roads as they then were.  At that point the management company represented the freeholder, so could dictate terms.  By allowing adoption, ownership has passed to the public, and control ceded to the Highways Agency and local authority.  It's not their road any more.  
Attempting to charge you for writing entirely illegitimate letters is laughable.  I'd keep them, just in case, but am fairly certain that nothing is going to happen.  A lease is a contract between landlord (freeholder) and tenant.  The landlord has removed itself from the equation by giving up the land.  

This is exactly how we feel and what everyone involved has said. However, the £165 charges are added to the service charges / charged to our property for their ‘time’ having to write the letters to us. We need to have these charges removed and we need to stop the charge letters. I am worried about them trying to take an injunction out against us to ensure we do not park the van as they have said we will incur all costs. It has taken a considerable amount of my time too and I just need them to stop now as it makes living in our ‘dream’ home unenjoyable. Thank you for your help, have you ever been in this situation or known of anyone who has?

You're welcome.  I've not been in such a situation and, I suspect, very few others have as it won't come up very often.  The management company is simply wrong and their follow up is amateurish at best.  They can't take out an injunction because there's nothing in civil law to prevent you parking a van on a public highway.  The only ones with any power over the highways are official bodies: local authority, Highways Agency, the police, VOSA, DVLA etc.  You would either need to commit a criminal offence or fall foul of a Traffic Regulation Order to arouse their interest.  It isn't private land and there's nothing to sue you for.  
I can only suggest speaking to a solicitor about the charges as you'll have to take action to get the money back.  

We’ve not paid the charges yet as they have been charged ‘to the property’. We pay the service charges once a year and I can only assume that these additional charges will be present on that invoice in January, at which point we make a payment via bank transfer. They can’t take the money themselves. 

NeilCr

Do you know who the freeholder is?

They will appoint the Managing Agent so, if you do, you could try talking to them - before incurring legal fees. Might be worth a try.

User_220321

NeilCr said:

Do you know who the freeholder is?

They will appoint the Managing Agent so, if you do, you could try talking to them - before incurring legal fees. Might be worth a try.

We contacted the freeholder who agreed that the wording of the lease is obsolete now as it only refers to the land owned at that time. They could not do anything in regards to the charges for his letters/ admin as the charges are against us, not them. It is a very frustrating situation. 

mrschaucer

Bonniemarie said:

We contacted the freeholder who agreed that the wording of the lease is obsolete now as it only refers to the land owned at that time. They could not do anything in regards to the charges for his letters/ admin as the charges are against us, not them. It is a very frustrating situation. 

The Managing Agents are instructed by the freeholder, they don't have magical rights to do whatever they want.  The freeholder has every right to call off his attack dogs if they are in the wrong and should do so.

Titus_Wadd

Just out of interest, not in answer to your predicament, but if the roads have been adopted what other areas are being managed? If it's a large estate maybe there are green spaces, children's swings etc but have you seen a decrease in the maintenance fees?  (We have to pay for an estate road, that hasn't been laid yet, to be maintained!  We're trying to fight this.)

I hope you get this sorted, it's very damaging fighting stuff like this (not just expensive).

User_220321

Titus_Wadd said:

Just out of interest, not in answer to your predicament, but if the roads have been adopted what other areas are being managed? If it's a large estate maybe there are green spaces, children's swings etc but have you seen a decrease in the maintenance fees?  (We have to pay for an estate road, that hasn't been laid yet, to be maintained!  We're trying to fight this.)

I hope you get this sorted, it's very damaging fighting stuff like this (not just expensive).

The other areas managed include green areas, two parks and ponds etc. The estate isn’t actually that big. Believe it or not, we’ve only lived here three months. The estate has been here 8 years and the roads were adopted in 2013. Therefore I would assume that the fees have always been similar as they seem to have been adopted almost straight away. 

Your issue sounds very strange too. I do know that if roads plan to be adopted, then this is usually decided at the planning stage of the development. Are those plans in place for the roads in question? (They then must be built to a certain standard etc you see) 

User_220321

mrschaucer said:

Bonniemarie said:

We contacted the freeholder who agreed that the wording of the lease is obsolete now as it only refers to the land owned at that time. They could not do anything in regards to the charges for his letters/ admin as the charges are against us, not them. It is a very frustrating situation. 

The Managing Agents are instructed by the freeholder, they don't have magical rights to do whatever they want.  The freeholder has every right to call off his attack dogs if they are in the wrong and should do so.

 The freeholders said they had no power as this company are employed by the managing agent (who ironically is the person as who owns the maintenance company)... neighbours tell me that one of the directors of the managing agent employed themselves as the maintenance company. Very difficult when they are the same person! 

bouicca21

I’m tempted to wonder whether demanding money to which there is no entitlement and then pursuing someone for not paying it amounts to harassment, in which case the local coppers might be worth approaching (armed with evidence so they can’t rob you off).

NeilCr

Bonniemarie said:

mrschaucer said:

Bonniemarie said:

We contacted the freeholder who agreed that the wording of the lease is obsolete now as it only refers to the land owned at that time. They could not do anything in regards to the charges for his letters/ admin as the charges are against us, not them. It is a very frustrating situation. 

The Managing Agents are instructed by the freeholder, they don't have magical rights to do whatever they want.  The freeholder has every right to call off his attack dogs if they are in the wrong and should do so.

 The freeholders said they had no power as this company are employed by the managing agent (who ironically is the person as who owns the maintenance company)... neighbours tell me that one of the directors of the managing agent employed themselves as the maintenance company. Very difficult when they are the same person! 

Sorry

Can you just clarify this please?

There is a freeholder who employs a managing agent who employ a maintenance company. And it is the maintenance company who are issuing the threats? That's all a bit unusual - in my experience anyway. It would be the managing agent who would be having correspondence about restrictive covenants. I would still think that the freeholder could instruct the managing agent that they want no further action to be taken on covenants. Whoever employs who the managing agent have to follow the freeholders instructions (unless they are illegal of course)