Primacy of Contract

hullensien

our complex has a similar issue whereby that loveable rogue Mr Del Grosso regularly dished out PCN’s for “Failing to display Permit” to both Residents and Visitors. We are now getting the same treatment from BaySentry.

Parking is ad-hoc - spaces are marked but not assigned. There are 60 spaces and 101 flats. it’s sometimes busy but never full as not everyone owns a vehicle

The lease states
“not to keep anything other than a private motor car or private motor cycle (for personal use only) in the parking area (if assigned) and not to allow any trailer or caravan to be kept on any part of the premises shown edged in blue on plan number 1 attached hereto and not tom permit any visitors private motor car or private motorcycle to be parked on any space assigend for visitors exceeding three hours in any period of 24 hours”

There is no mention of permit anywhere. 

Is it safe to assume any permit issues can be overturned on Primacy of Contract?

Umkomaas

Is it safe to assume any permit issues can be overturned on Primacy of Contract?

More a question for a Judge than a private parking forum, and even then you might get different answers!

davemcc

There are several sections in the lease relating to "Car Parking Space".

As with all things legal, brevity is the greatest enemy so I'll copy and paste it piecemenal, starting with the Landlord's lease where it gives a schedule of the Apartment numbers and the Car Parking Space allocated (in this case, Demised) to each one. Note that there are 201 Apartments and only 100 Car Parking Spaces.

This is the extract relating to mine:

"

Schedule   |   Registration date   |   Property description   |   Date of Lease   |   Lessee's 

no.                 and plan ref.                                                      and term               title

130                14.12.2007            Flat XXX (sixth floor)           30.11.2007           MANXXXXXX

                      Edged blue                                                       250 years from

                      (part of)                                                             30.11.2007

NOTE: This lease grants the exclusive use of the parking space numbered

53  in blue on the supplementary plan to the title plan"

Jenni_D

Exclusive use ... I think that's important terminology. It means it is yours - you effectively own it (as much as you do the flat itself). Therefore any PPC would be trespassing on your land to affix a PCN.

Maybe search for (Roger) Davey v UKPC ... he extracted a decent wodge from them in similar circumstances.  

davemcc

	Apologies for this ...

1.3   The Property	Plot number 6.27 on the third floor at The XXXXX Apartments XXXXXX Street Buildings XXX XXXXXX Street Manchester as described in Part I of the First Schedule
1.5 The Car Parking Space	The Car Parking Space coloured red and numbered XX on the Plan
1.17 Service Charge	the contribution equal to the total of the Tenant's proportion of the Flat Service Charge plus the Estate Service Charge plus the Car Parking Space Service Charge
2.9	“the Main Structure” means:
2.9.9	The Car Parking Spaces including those spaces demised with a particular flat in the Estate …
5 DEMISE
5.1	IN consideration of the Purchase Price now paid by the Tenant to the Landlord (the receipt of which the Landlord acknowledges) and of the Rent and the covenants on the part of the Tenant the Landlord DEMISES with title guarantee unto the Tenant the Property described in Part I of the First Schedule TOGETHER WITH (so far as the Landlord can grant the same and in common with the Landlord and all the persons entitled thereto or authorised by the Landlord) the rights set out in Part Il of the First Schedule which rights are subject to and conditional upon the Tenant paying the Service Charge as provided in this Lease EXCEPTING AND RESERVING unto the Landlord and the other owners and occupiers and other persons authorised by the Landlord for the benefit of the Estate the rights set out in Part Ill of the First Schedule TO HOLD the Property unto the Tenant for the Term YIELDING AND PAYING during the Term
	SUBJECT TO the Tenants covenants herein contained and SUBJECT TO all rights easements covenants stipulations and other matters contained or referred to in the Property and Charges Register (other than financial charges) of the Title Number GMXXXXXX so far as the same relate to or affect the Property and are still subsisting and capable of being enforced
PART II	Rights granted to the Tenant
	2 Common Areas
	A right of way at all times and for all reasonable purposes over and along the Common Areas leading to and from the Property and the Car Parking Space the Refuse Store the Bicycle Store the Storage Area and the Courtyard and the right to use any communal areas for general amenity purposes PROVIDED THAT the Tenant shall not thereby cause a nuisance or annoyance or disturbance to the owners or occupiers of the other
6 Car Parking Space (if any)	An exclusive right to park a private motorcar or private motorcycle (having an MOT certificate if required) on the Car Parking Space in accordance with the Regulations
THE THIRD SCHEDULE	Management Company Covenants The Manager will:-
4	Make and enforce such regulations (if any) as it may in its absolute discretion consider necessary and desirable to enable all residents of the flats on the Estate to enjoy the flats and the Common Areas serving them and any parts Of the Estate intended solely for use by owners of the flats or to otherwise comply with the regulations and requirements of the local authority
Part 3	Car Parking Service Charge Covenants by the Management Company
5	Make and enforce such regulations (if any) as it may in its absolute discretion consider necessary and desirable to enable all users of the Car Park to enjoy the Car Park or to otherwise comply with the regulations and requirements of the local authority
THE FOURTH SCHEDULE	Landlord’s Covenants
	Quiet Enjoyment
	That the Tenant paying the Rent and Service Charge and performing and observing the covenants on the part of the Tenant to be performed and observed may peaceably enjoy the Property during the Term without any lawful interruption by the Landlord or any person or persons rightfully claiming under or in trust for the Landlord
THE SIXTH SCHEDULE	PART 1 – SERVICE CHARGE
3	CAR PARKING SERVICE CHARGE
3.2.4	the cost of employing staff for the performance of the duties and services of the Management Company in connection with the observance and performance of the provisions of Part Ill of the Third Schedule hereto and afl other incidental expenditure in relation to such employment including (but without limiting the generality of such provision) advertising costs the payment of the statutory and such other insurance health pension welfare and other payments contributions and premiums industrial training levies redundancy and similar or ancillary payments that the Management Company may at its absolute discretion deem desirable or necessary and the provision of uniforms working clothes tools appliances cleaning and other materials bins receptacles and other equipment for the proper performance of their duties and benefits jn kind fares and out of pocket expenses
3.3	The Management Company shall be at liberty to review any additional costs and expenses referred to in this part of the Lease and to add thereto any items of  expenditure charge depreciation or other allowance or provision for future anticipated expenditure on or replacement of any installation equipment plant or apparatus or the rental value of any part of the Estate used in connection with the provision of the services thereto not previously included therein and from and after the relevant date of such review such additional items of expenditure charge depreciation allowance provisions for future anticipated expenditure or value shall be included in the calculation of the Car Parking Service Charge and deemed to be included
THE SEVENTH SCHEDULE	Regulations
8	In using the Common Areas and the Accessways neither the Tenant nor any member of the Tenant's household are to:-
8.1	contravene any reasonable parking or traffic regulation arrangements displayed on notices there
21	To comply with any regulations which the Landlord or the Management Company may from time to time make for the Estate the tenants and occupants of all the flats
23	Not to leave or park on or so as to cause any obstruction to the Accessways parking spaces (except for the Car Parking Space any motor vehicle motor cycle electric carriage bicycle (other than in any area designated for the storage of bicycles) perambulator or other vehicle and to observe atl regulations made by the Landlord or the Management Company from time to time relating to the parking of vehicles (and the Tenant acknowledges the right of the Management Company to apply wheel clamps to vehicles parked in contravention of such regulations and to charge a fee for removal)
THE NINTH SCHEDULE	HEAD OF SERVICE CHARGE  |  PROPORTION PAYABLE
	Car Parking Service Charge   |  1/100

Coupon-mad

'Exclusive use' in a lease was tested on appeal in Excel v McCarthy, before HHJ Saffman at Leeds in 2019, in a case where @Lamilad was lay rep.  McCarthy won on appeal because 'exclusive' means just that.  Trouble is, I don't think a transcript was ever obtained.

I've just posted about primacy of contract here, and mentioned Kettel v Bloomfold that established as an authority, that leasehold easements about parking cannot be extinguished:

https://forums.moneysavingexpert.com/discussion/comment/78677381/#Comment_78677381

davemcc

Thank you for this.

It looks as though I am now convinced that;

1 - the Car Parking Space is NOT a demised space

2 - it appears to be 'an easement'

3 - whilst 'exclusive' is the term used to describe it, there is still a problem which, I hope, you can assist with.

The 'Regulations' (Schedule 7 of the Lease) state in para 23;

"Not to leave or park on or so as to cause any obstruction to the Accessways parking spaces (except for the Car Parking Space any motor vehicle motor cycle electric carriage bicycle (other than in any area designated for the storage of bicycles) perambulator or other vehicle and to observe all regulations made by the Landlord or the Management Company from time to time relating to the parking of vehicles (and the Tenant acknowledges the right of the Management Company to apply wheel clamps to vehicles parked in contravention of such regulations and to charge a fee for removal)"

Neither the Landlord nor the Management Company has imposed 'regulations'. The Parking Signs were put up by the operator who is contracted by the Management Company. The wording on the Parking Signs is;

"ATTENTION

PRIVATE LAND-TERMS AND CONDITIONS APPLY

THIS SITE IS MANAGED AND OPERATED BY

XXXX XXX XXX LTD

PARKING CHARGE OF £100

PAYABLE WITHIN 28 DAYS

Terms & Conditions are shown below

PERMIT HOLDERS ONLY

PERMITS MUST BE CLEARLY DISPLAYED ON DASHBOARD/WINDSCREEN

By parking or remaining on this land

You the driver accept liability to pay the Parking Charge for any failure to comply with the Terms and

Conditions contained within this sign.

You will be liable for additional parking charges for each and every subsequent 24-hour period

(or part thereof) that the vehicle remains or if it returns at any time.

We are not liable for any loss or damage howsoever caused to any person or property while on

this site save under any statutory provisions.

Failure to comply with the terms and conditions may result in the vehicle's keeper details being

requested from the DVLA. Enforcement action may incur additional costs that will be added to the

value of the parking charge and for which you will be liable on an indemnity basis.

Automated payment line XXXX XXX XXXX

IMAGES OF VEHICLES INCLUDING VEHICLE NUMBER PLATE WILL BE OBTAINED IF YOU

BREACH THE TERMS OF PARKING TO PURSUE THE DRIVER OR KEEPER FOR A PARKING

CHARGE. IMAGES MAY ALSO BE TAKEN AND A PARKING CHARGE NOTICE ISSUED BY POST"

There may be other issues with the wording of the sign but my point is this: The Tenant's lease states "to observe all regulations made by the Landlord or the Management Company"

Is this notice and its Terms and Conditions made by the Landlord, the Management Company or the Operator?

Jenni_D

(and the Tenant acknowledges the right of the Management Company to apply wheel clamps to vehicles parked in contravention of such regulations and to charge a fee for removal)

When did you sign the lease? Wheel clamping has been illegal (except by statutory bodies) since 2012. Thus it could be argued that any term which imposes an unlawful right against the tenant must be unfair and thus treated as unenforceable.

davemcc

That was written in the days when wheel clamps were a day-to-day reality.

Doubtful that a court would accept that an operator would use such things as the use is now banned.

D_P_Dance

Even before clamping was made illegal, that would probably have been an unfair term,

https://www.legislation.gov.uk/uksi/1999/2083/contents/made