Allocated parking space- five tickets issued to resident

nicestrawb

Since it isn't specifically mentioned in your lease and your lease talks only about reasonable regulations, I don't think it is reasonable for them to not have or use a list of authorised vehicles. They could easily ascertain authority by referring to such a list but have chosen not to.

Holtzmann84

Just a further update to say I spoke to the Lease Advisory Service today and they confirmed that it all rests on whether the lease explicitly states that parking controls are in force (you need to use a permit or pay a penalty etc), and as mine doesn't state that, it has not been updated to allow for a third party to be operating like this, so has primacy over the imagined contract that PCM have dreamt up (or claim exists because of signage and me accepting their permit initially). They recommended the same case law that's been mentioned-

In the case of Pace v Mr N [2016] C6GF14F0 [2016], it was held that the parking company could not override the tenant’s right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was held that the parking company could not override the tenant’s right to park by requiring a permit to park. If Link or CPML (the management company) want to have any right to manage the parking on the Landowner's property, the deeds would have to be altered to state this for the whole site.

They also confirmed that sweeper clauses like the one in my contract (relating to the possible need to introduce regulations to common parts of the estate- and mentioning parking as an example), which my property manager has also now tried to use against me- are not specific enough, they need to state details about specific controls and third parties, and the usual point stands about the fact there would need to have been a consultation, both parties would need to be in agreement etc. 

Because this amounts to them changing the lease, as it's not reflected in my written lease, this is a derogation from grant. So they have told me to continue escalating with my property managers as it is now their responsibility to act.

I have contacted my property manager again, outlining all of this, and explaining that someone from the organisation needs to step in now. Let's see... I'm still not exactly hopeful!

As an aside I'm also still doing the IAS appeals process, although of course not expecting anything from that. 

Holtzmann84

I've already received a response from property manager:

Thank you for your e-mail, I have passed your e-mail over to our Housing Solicitors to look into and provide advice in relation to why L&Q are unable to get involved in the appeals process.

I will revert back to you once I receive a response from our legal team.

As you have followed the appeals process and escalated this matter over to the Independent Appeals Service, the IAP will now look into your appeal and make a decision accordingly.

Just endless passing of the buck. 

Coupon-mad

Can you get the LAS to confirm their advice in writing?  You will need that for your case and an email or letter stating this from the LAS will really help loads of others.

Holtzmann84

Coupon-mad said:

Can you get the LAS to confirm their advice in writing? 

That was a phone appointment so the only email they sent after was the one with the case details, but I've asked if there's any chance they could send a brief summary too. I did also put in a written request for their help when I first heard about them so I will eventually receive more from that.

amvo33

As you have followed the appeals process and escalated this matter over to the Independent Appeals Service, the IAP will now look into your appeal and make a decision accordingly.

Just endless passing of the buck. 

Don’t let them off the hook. You’ve received really useful advice from LAS and I would simply respond to your property manager referring to your meeting with LAS and what they have told you - forward everything exactly as per your post from 8th November. It doesn’t matter if it was by phone or in writing! They are trying to fob you off saying that it is a matter for the IAP - it is not! Tell your property manager that you will make a formal complaint if they do not take the matter seriously and give them a deadline of 7 days to respond. The IAP is a distraction and completely irrelevant.

Holtzmann84

I have now received the written advice from the LAS, in response to the initial written enquiry I submitted, before I spoke to the other advisor on the phone. Interestingly the advice is different and I'm not sure what to make of that. This advisor says: 

As the lease is a contract between you and the landlord, it is usually the case that the landlord will have the power to enforce its terms and seek that whoever is in breach of the lease, comply with it.
If your lease had said that the parking space is demised to you and you have a right to use and enjoy it because it is allocated to you and the space belongs to you as part of your demised premises, then there may have been some grounds to argue that you should not be fined for parking in your property.

As the space does not belong to you but have a right to use and enjoy it, and where there are provisions in the lease that allow the landlord to regulate parking then case law suggests that it may not be unusual for the landlord to regulate the parking. If so, then you may have to make payment of the penalty charge if the parking permit was not properly displayed.

They went on to quote some different case law, where the estate managers were successful introducing parking restrictions (although very different context to the usual scenarios, as it seems it was about restricting actual parking for everyone to make sure it was evenly shared out, thus fulfilling the 'right to park')- Montrose Court Holdings Ltd and Another v Shamash and others: CA 21 Feb 2006.

You may be in a position to challenge the demand and as you say your lease does not mention any terms enabling the freeholder to introduce parking permits and impose fines, it may be difficult for them to insist that you have to pay this fine, but it is unlikely that you can challenge the demand for this at the First -tier Tribunal (Property Chamber) because there is no reference in your lease to making this payment and it is not an administration charge that falls within Schedule 11 (1) of the Commonhold and Leasehold Reform Act 2002.

The matter will probably have to be decided by a county court, although I appreciate that you do not wish to take this route.

I'm starting to struggle to believe I'll get anything from this process other than a HUGE bill for five full priced parking tickets!

Holtzmann84

OK and now I've received another email from the property manager- I haven't yet responded to the one he sent me last, which said he was referring the matter to the property manager's solicitors to advise:

Without prejudice, I believe I have been very transparent and explained my position in relation to this matter. The residents are entitled to use the communal parking area on the terms set by L&Q under clause 4.2. Due to the parking being misused, a parking management system was introduced, all affected residents were notified. Permits were then subsequently issued by PCM to all residents, as you are a permit holder this would strongly indicate that you were aware of the parking management regulations and the penalties for not properly displaying a permit, communal signages have also been displayed by PCM so that the parking regulations of the estate is clear.

PCM reduced the penalty charge as a gesture of goodwill but as you have made a formal appeal to the Independent Appeals Service, your case will now go over to a completely independent Solicitor/Barrister, at this stage this negates dialogue and the offer made by PCM the party that issued you the fine, you have also mentioned that you were unsure of paying the fines which led you to take the appeal further accepting the risk/outcome of the independent appeal.  

I am extremely sorry, at this stage after reverting back to my legal team there is nothing further that I can do apart from advising you to seek legal recourse and to continue to follow the independent appeals service where you have escalated your case to an independent statutory agency.

As you have made reference to the L&Q complaints process in your e-mail below, I have checked our system and we do not have a formal complaint logged. I would like to highlight the following for your reference, cases where a customer is taking a matter to court, or the matter is being dealt with by another statutory agency that has the power to resolve the complaint (if the claim occurs after the complaint has been raised, we will then close the complaint). In your case this matter has gone over to Independent Appeals Service who will be responsible to make a decision on your case.

Please accept my sincere apologies and my intentions is not to make this matter difficult for you, it is simply out of my hands. I appreciate my response may not meet your personal expectations but i am unable to comment any further on this matter.

I might be wrong but it sounds like he's trying to say that because I used the IAS appeals route I have somehow forfeited my right to complain formally to my property managers (or at least to expect them to do anything about it)?! 

Jenni_D

That advice falls at the first hurdle ... it's neither a fine nor a penalty. 🙄

Holtzmann84

Jenni_D said:

That advice falls at the first hurdle ... it's neither a fine nor a penalty. 🙄

Which advice was that?