Primacy of Contract

davemcc

This is a new thread following advice from other forumites.

The responses in this post relate to the last post from Coupon-mad (14 Oct @ 3:15pm)

- I accept your comment re- Judge not accepting postcode defence

- I have received a Claim Form from CCBC (dated 04 October) and acknowleged receipt yesterday (14 October)

- This is the first claim that I have received although there are a number of "Final Demands" from solicitors chasing PCNs

-The PCNs have been issued for a variety of reasons - the overriding one being 'No Permit Displayed"

- The Managing Agent has only recently issued a 'Valid Permit' - it seems that a 'Valid Permit' requires a unique number to be entered onto the permit by the Managing Agent. This was never made clear in their request for my personal details (Apartment number / Car Park Space number etc) and for some time I was using a blank permit (issued by the Management Company and was issued a PCN because this was not a 'Valid Permit'.

Most of the PCNs were issued when my car was parked in my allocated bay.

On two occasions a PCN was issued (11 May @12:46 and 12 May@11:43) as access to the garage (access by key fob) was inoperable and the car was parked on the external car park

- The lease refers to me as a Tenant

The Lease defines the Main Structure (The Main Structure means) "2.9.9 the Car Parking Spaces including those Car Parking Spaces demised with a particular flat in the Estate and boundary walls and fences

Coupon-mad asked: "What does your Agreement or Lease say about ..." - This is definitely a Lease. I am one of the parties to the lease, the others being the Landlord and the Management Company.

Parking

The Particulars to the Lease state:

1.5 - The Car Parking Space - The Car Parking Space coloured red and numbered 45 on the Plan - the plan (which is part of the Lease) is titled "CAR PARKING DEMISE SPACE 45" and the Apartment plan is titled "XXX FLOOR DEMISE PLAN - Apartment X.XX"

DEMISE

(extract) The Landlord DEMISES with full title guarantee unto the Tenant the Property described in Part I of the First Schedule TOGETHER WITH the rights set out in Part II of the First Schedule (Rights granted to the Tenant)

The Property described in Part I of the First Schedule

"The Property having the number and being on the floor described in the Particulars"

SUBJECT to the Tenants covenants herein contained and SUBJECT TO all rights easements cocenants stipulations and other matters contained or referred to in the Property and Charges Register (other than financial charges) of the Title Number XXNNNNNN so far as the same relate to or affect the property and are still subsisting and capable of being enforced.

This is the extract from the Schedule of Notices of Leases attached to the Landlord's Title, as it relates to my Apartment:

Registration date and Plan ref:     Property Description             Date of Lease and Term               Lessees Title

14.12.2007                                       Flat X.XX (XXX Floor)               30.11.2007                                      XXXNNNNNN

                                                                                                         250 years from 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

(NOTE: the supplementary plan to the title plan is titled CAR PARKING DEMISE SPACE 45 - this is not an error, the Car Parking Spaces were re-numbered at some point but the spaces are in the same location just numbered differently)

The rights set out in Part II of the First Schedule (Rights granted to the Tenant)

6 - CAR PARKING SPACE (if any) An exclusive right to park a private motorcar or motorcycle (having an MOT Certificte if required) on the Car Parking Space in accordance with the Regulations

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

NOTE: - The Seventh Schedule (Regulations) para 8 - does NOT stipulate the Car Parking Space - only the Common Areas and the Accessways

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

NOTE:

1- the parking 'regulations' are made by the Parking Operator - no mention of the Landlord or the Management Company is made on the Parking Notices

2 - the 'regulations' are made for "the Estate the tenants and occupants of all the flats" - yet not all of 'the tenants and occupants of all the flats' have access to the garage for parking vehicles (201 apartments and 100 parking spaces)

Part III of the Third Schedule

Car Parking Service Charge Covenants by the Management Company

The Management Company will:-

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

Vehicular access

Part II - Rights granted to the Tenant

A right of way at all times and for all reasonable purposes with or without vehicles over and along the carriageways of the Accessways and a right of way at all times and for all reasonable purposes on foot only over the footpaths of the Accessways

Peaceful Enjoyment

The Fourth Schedule - Landlord's Covenants

2 - 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 persons rightfully claiming under or in trust for the Landlord

I have made no defence

I have received no Witness Statements

The Parking firm is Car Park Management Services (CPMS) Ltd (Manchester office

Solicitor is BSW Legal (Leeds)

davemcc

Sorry - Solicitor is BW Legal (Leeds)

D_P_Dance

Let themtake you to court. IMO they will have an uphill struggle.  Few of thes "own space" claims suceed.  Have you considered a couter claim?   Have you read Davey v UKPC?  Have you complained to your MP?

Fruitcake

Ask the MA to cancel the charge.

Tell them and the PPC that you already have a right to park and therefore withdraw any implied right of access to your demised property by a third party in general, and specifically any parking company.

State that you never agreed to be a party to a parking permit scheme. (You may or may not wish to return the permit or tell the MA that the PPC or MA can collect the permit at a mutually convenient time.)

You only displayed the permit as a curtesy, but now withdraw that curtesy since a derogation of grant has occurred in breach of your lease.

Ask when (not if) a ballot of all landlords and tenants was carried out in accordance with Section 37 of the Landlord and Tenant Act 1987, and what was the result of the ballot?

Your lease cannot be lawfully varied without such a ballot taking place and the majority specified in the above Act in agreement with the maximum number of votes against not being exceeded.

Complain to the PPC that they have unlawfully obtained and processed your personal data.
Complain to the DVLA that they have unlawfully released your personal data.

When you get the generic whitewash back from both parties, complain to the ICO about this data breach. (Separate complaints).

Complain to your MP.

Get other residents involved. Set up a facebook or similar fightback group.

Move home. 

KeithP

Where did anyone suggest you start a second thread about the same incident?

D_P_Dance

On the first thread?

KeithP

D_P_Dance said:

On the first thread?

Well I've just re-read the whole of the OP's first thread and cannot see that suggestion.

Castle

KeithP said:

D_P_Dance said:

On the first thread?

Well I've just re-read the whole of the OP's first thread and cannot see that suggestion.

Not on the OP's original thread but their "hijack" on this one.
Incorrect location postcode on PCN — MoneySavingExpert Forum

Coupon-mad

Anyway shall we use this one as it has all the info we need, and let the original one die?

The OP has EXCLUSIVE use of a DEMISED space owned by their landlord and the rights are passed exclusively to the tenant, so this Defendant cannot possibly be held to attempts to bolt on irrelevant moneymaking terms on poxy cardboard signs!

davemcc

Thank you all for your comments and suggestions.

I feel a lot more comfortable having read these, the Kettel case and others.

I have a lot on this weekend and will not be able to get to dig further into the evolving issues, so I hope you will all bear with me for the next few days.

I will make a point of contacting the MA early next week with a view to having all of these tickets rescinded and will keep you informed of the progress.

Thanks again.