Claim Form, 2 contract breaches, own parking space, no permit displayed, Link Parking

Fruitcake

Jenni_D said:

Sorry - I was meaning this bit: Tenant refers to myself in definitions of my lease. Thus the line "The tenant must observe all regulations made by the Management Company from time to time relating to the parking of such vehicles." would apply to the OP rather than not (per your previous post)?

Perhaps the OP can share the Definitions section of the lease?

I don't know enough about this to fully understand the implications, but if it were me, I would still include it, and let a judge decide.

Coupon-mad

Same.

I think most Judges would want to protect a lease rights.  The OP can use the relevant court transcript recently posted by @bargepole

Does the clause say 'all regulations' or 'all REASONABLE regulations?  Leases usually say the latter.

Elo88

It does say "all regulations" just as I worte before.

From my lease definitions:

"Tenant" means the party described as the Tenant in clause LR3 and includes the Tenant's successors in title and assigns.

LR3 states the name of the person who originally bought the flat. I am their successor.

Hence, I believe this applies to me.

Nevertheless, my lease gives me right to park my vehicle in my allocated parking space and a right to quiet enjoyment, which I already included in my defence. MC hiring PC to bond me with a contract would be in contradiction to the rights given above. I have primacy of contract so that can't be done without a vote.

This is my current understanding, as wel as Coupon-mad's.

Wondering of what others think?

Elo88

Coupon-mad said:

You have primacy of contract and your lease rights to park cannot be varied, interfered with or charged for, without express agreement by you and at least 75% of the other leaseholders.  As an extra exhibit, you can use the judgment posted the other day by @bargepole

Is this the case where Link Parking issued 37 PCNs  to the same lad for parking on a private spot?

His lease grants him 'unfettered right to park' - mine doesn't say unfettered and I have that clause about observing PM regulations.

Coupon-mad

No. Wasn't a Link case, it was a UKCPM case in March.  The  District Judge dismissed the Operator’s claim on the grounds that no variation of lease was agreed by at least 75% of the leaseholders, pursuant to Section 37 of the Landlord & Tenant Act 1987.

Maybe @bargepole hasn't posted the judgment here yet.  I saw it off-forum.

The word 'unfettered' is just an adjective used by the defence.  It never appears in a lease.

Johnersh

There appears to be an absolute right to introduce regulation, but as is clear from Saeed v plustrade and montrose v shamash those regulations are not unlimited. It is a disingenuous statement. 

In both of those, there was an entitlement to park, but not a demised bay.

With a demised bay, a permit scheme effectively grants a third party a right to charge the o/p £100 per day for not displaying their permit. Inmho, that is a material change in the grant of the leasehold property. If the permit is restricted to a specific vehicle it also infringes other entitlements the o/p enjoyed - perhaps allowing his visitors/guests to park in that space etc. 

The bay should not be used by anyone else, so it requires no management, whereas the roadways and visitor spaces may well do, beyond the usual regulations such as not to abandon cars etc. 

Elo88

Hello everyone, sorry I got quiet for this long; it's because my hearing was adjourned twice and finally took place today.

Long story short - I won - mostly thanks to the fantastic support received from this community Massive thank you to everyone who is contributing to this forum.

Bellow are some bullet points to what it was about and how it went so it may help some in similar situation:
- I got 2 PCNs issued by Link Parking for parking in my own parking spot (I own the lease) without clearly displayed permit;
- I followed advice from this forum, used standard defense template and based it on primacy of contract, as my lease grants me:
     * right to use my allocated parking space for parking of domestic vehicle;
     * right of quiet enjoyment without interruption from landlord or third parties;
     * tells me to observe all regulations introduced by Managing Agent in terms of parking (important bit);

Claimant based their claim on this statement about 'observing all regulations introduced by Managing Agent in terms of parking'. They said MA appointed Link to manage parking hence introduced a parking regulation.

For that I said that letting a third party charge me 35k pounds annually (they can charge 100 quid every 24hrs) is not only unreasonable but would constitute a substantial change to my lease and couldn't be forced without a vote within leaseholders. I also said it would be in contradiction to the other clauses in my lease such as right of quiet enjoyment without interruption by third parties.

In general I felt the judge was on my side all the time, the BW legal rep didn't have much to say, I had a good response to everything he said. The judge said he can't see the ground under which contract with Link would be binding and could overpower my lease, hence he said he will submit his findings for a final hearing (sorry for crap language I use, don't remember how he said this exactly). This was obviously not my goal to go to court again but I still feel I could win just like this.

At this stage I asked the judge if I can use evidence submitted by the claimant. As part of their evidence they submitted an agreement between Link and MA from 7 years ago (when my block was not yet build lol) where the area they agreed Link wil control was outlined and EXCLUDED my block! I shown them 2 documents - my site plan, showing where my parking spot is and a map from an agreement with Link.

Based on this point the judge struck the case out. 

In my evidence bundle I inluded my statement of costs, which was a standard 95 for loss of leave + 16 hours research/preparation on litigant in person rate of 19 quid/h. The claimant (BW legal) objected that, they asked if I am employed or self employed and judge agreed that I had no loss of earnings as I am employed. I tried to tell them my leave has value and I would rather spend this day at park with my family but that was not granted anyway

At the end asked if I have anything else to say I said I am really happy with the outcome and that I don't need to display my permit anymore.

Outside of the room the BW legal representative approached me again and said they advise not to stop displaying my permit, because next judge may have different opinion on this bla bla bla. I just invited them to fine me again, and promised I will do them for tresspas if they do so.

Last thing to add - just like in the newbies thread, the BW rep approached me before we got to the court room and asked something like 'since you took it this far I understand you don't want to settle this withouth the hearing? You understand this is a preliminary hearing and there will be more? Bla bla bla' - I told him I want to proceed with a hearing and was nice to him at all times.

This forum helped me prepare for every scenario - big thank you.

Boat_to_Bolivia

Fabulous, well done you had obviously put a lot of work into this. Thanks for the comprehensive report. Again, well done I bet you are buzzing

Fruitcake

Well done on your win, and thanks for the detailed court report.

Le_Kirk

Good for you!  Do I understand that it was a preliminary hearing that first of all the judge said he would pass the findings on to the next hearing and then said the case was struck out?