Primacy of Contract

davemcc

Excellent, thank you.

I've read through all of the posts (yes, really!) of the last 5 years but they all appear to be really verbose.

Is there a short, succinct defense?

I'm more than happy to cite the relevant cases and if necessary go into detail but some of these things seem to go on for pages and pages.

davemcc

Just to clarify ...

1 - Yes - the lease contains a plan which identifies the floor and location of the Apartment

2 - Yes - the lease contains a plan which identifies the location and number of the car park space

2 - The Landlord's lease has a schedule of Apartments and car park spaces - mine is clearly set out as a 'demised' space

KeithP

davemcc said:

Excellent, thank you.

I've read through all of the posts (yes, really!) of the last 5 years but they all appear to be really verbose.

Is there a short, succinct defense?

I'm more than happy to cite the relevant cases and if necessary go into detail but some of these things seem to go on for pages and pages.

Have you looked at the template Defence thread?
As you say you have read everything, I guess you have.  

Most people seem to find the 'already written for you' template Defence useful.
You can of course leave out everything that doesn't apply, but you might want to check that bits really don't apply to your situation before removing them.

davemcc

"Have you considered a counter cliaim for harassment and/or inyerference with your leashold righrs."

Currently considering:

- Trespass against the Operator

- Action against the Managing Agent for tort

- Acting against the Operator and the various solicitors in respect of Data Protection

- Acting against the Operator for issuing two sets of claims (not Money Claims, yet) from two solicitors in the case of one of the PCNs

Coupon-mad

Re the ones that are not moneyclaims yet, reply to those solicitors NOW, telling them that their client has already jumped the gun and filed a claim number xxxxxx for a single PCN turning on exact-match facts and points of law to the ones they are wittering on about.  As such, these other duplicate parking charges are unrecoverable under the principle of cause of action estoppel and if they continue to harass you with this 'drip, drip' multiple separate demands form of torture you will issue a claim or counterclaim for harassment.

An estopped matter is not recoverable as a new moneyclaim and they must now refer the unclaimed parking charges back to their client to either close and cancel those, or alternatively, to apply to the court to amend the particulars of claim on the existing claim number xxxxx and pay the appropriate court fees for such amendment, if allowed to do so by the court.

I agree with @bargepole about your defence in this case and he has a concise residential defence he has posted here before ages ago that covers it if you want to look back at his posts from a couple of years ago.

In your case this (what you have below) is dynamite in showing there is no legitimate interest in pursuing this claim and the problem appears to have been caused by the Claimant/their clients failing to provide a permit or put your VRM on the site whitelist.

The Judge will likely take a dim view of the fact that your evidence shows primacy of contract and/or that this entire dispute and harassment about other PCNs could have been avoided and was in the gift of this claimant all along, had they properly had conversations with their client the managing agent to identify which VRMs should have been whitelisted:

The Managing Agent has acknowledged (in an e-mail) that there is no record of a permit being issued to me (but they do have records of me requesting the permit by e-mail and telephone)

There are 9 PCN's in total over the space of 12 months - the Managing Agent has "arranged to have some of these waived" although I am being pursued for the one which has got to the Claim stage.

davemcc

Thank you.

I'll get onto this tonight and will advise their response.

Fruitcake

There is no problem with you showing us the relevant parts of your lease(s)/ AST(s). Just leave out your actual address details, and anything not relevant to parking.

Have a look at Part IV, Variation of Leases, Section 37 of the Landlord and Tenant Act 1987, especially the part about the ballot legally required before an amendment to an existing lease is permitted. All landlords and tenants must be balloted and a majority in favour must agree the change without exceeding the maximum number of permitted votes against.

Ask the landowner or managing agent or whoever introduced the PPC when (not if) this ballot was carried out, and what was the result.

Landlord and Tenant Act 1987 (legislation.gov.uk)

37Application by majority of parties for variation of leases.

(1)Subject to the following provisions of this section, an application may be made to [F1the appropriate tribunal] in respect of two or more leases for an order varying each of those leases in such manner as is specified in the application.

(2)Those leases must be long leases of flats under which the landlord is the same person, but they need not be leases of flats which are in the same building, nor leases which are drafted in identical terms.

(3)The grounds on which an application may be made under this section are that the object to be achieved by the variation cannot be satisfactorily achieved unless all the leases are varied to the same effect.

(4)An application under this section in respect of any leases may be made by the landlord or any of the tenants under the leases.

(5)Any such application shall only be made if—

(a)in a case where the application is in respect of less than nine leases, all, or all but one, of the parties concerned consent to it; or

(b)in a case where the application is in respect of more than eight leases, 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.

(6)For the purposes of subsection (5)—

(a)in the case of each lease in respect of which the application is made, the tenant under the lease shall constitute one of the parties concerned (so that in determining the total number of the parties concerned a person who is the tenant under a number of such leases shall be regarded as constituting a corresponding number of the parties concerned); and

(b)the landlord shall also constitute one of the parties concerned.

davemcc

I've tried to attach the file (pdf) via the 'browse' function but it doesn't work - someone has mentioned dropbox in other posts - how do I use this?

Apologies for being a bit dim but the 'help' is of little use and there is nowhere else to turn to.

I've approached the Site through email but the lag time is two days and I really want to get something going on this asap.

davemcc

Interesting point Fruitcake re - Landlord and Tennant Act.

In my case, the Car Park Spaces relate to 100 of 201 leaseholders.

Does the rule set out in S.37(5(b)) relate to all 201 leaseholders or just those with a demised Car Parking Space (i.e. 100 leaseholders)?

Jenni_D

As mentioned above, we probably don't need the whole lease - just the sections about parking and any sections regarding the MA's right to make changes for "the benefit of the estate". (You could simply copy/paste those sections into a reply here).