BW Legal Claim / Parking in my space

D_P_Dance

Read these, google "primacy of contract, and complain to your MP

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

Fruitcake

I just posted this on another own space thread.

You should complain to your MP and ask her/him to forward your complaint to Michael Gove MP and Neil O'Brien MP at the department for levelling up. They are responsible for producing the new mandatory parking code of conduct due out next year.

You have an existing right to park, but an unregulated private parking company is trying to take it away from you. Ask why this is allowed, and how she/he is going to stop it.
Ask them to bring it up in parliament, and also ask them to forward it to Michael Gove MP and Neil O'Brien MP at the department for levelling up, as they are the ones responsible for introducing the new mandatory parking code of conduct next year.

Tell them all you want the rights of a resident to be enforced, and parking companies who breach a resident's primacy of contract to be punished.
PPCs should be forced to check if a resident already has a right to park, and right to quiet enjoyment before issuing a parking charge. Failing to do so should be a breach of the new CoP.

Fruitcake

With regards to your lease, have a look at the Landlord and Tenant Act 1987, Part IV, especially section 37. THis refers to a mandatory ballot of all landlords and leaseholders that must be carried out before a lease can be varied.

Quote it to the management agents and ask when (not if) this ballot was carried out, and what was the result because it is unlawful to vary your lease without a majority in favour, and without exceeding the maximum number of votes against the change.

You might want to get other residents involved as well. 

jon_1827

Fruitcake said:

With regards to your lease, have a look at the Landlord and Tenant Act 1987, Part IV, especially section 37. THis refers to a mandatory ballot of all landlords and leaseholders that must be carried out before a lease can be varied.

Quote it to the management agents and ask when (not if) this ballot was carried out, and what was the result because it is unlawful to vary your lease without a majority in favour, and without exceeding the maximum number of votes against the change.

You might want to get other residents involved as well. 

I'm as certain as can be that the lease hasn't been varied. I bought the property about 6 months before the tickets were issued, within the contract pack there is a letter from the landowners solicitor saying there are no variations they are aware of but to check the land registry. Land registry search also part of contract pack and no reference to variations that I can see.

There is one part of the lease that concerns me, relevant text....

The right to use the Demised Parking Space(s) for the purpose of parking a motor vehicle not exceeding two and a half tonnes gross weight and motor cycles so far as it does not breach any covenants concerning the use of the Demised Premises.

In the covenants section....To comply with and make all reasonable endeavours to ensure that all persons living in or visiting the Demised Premises (including the Allocated Parking Space (if any)) or any part of the Maintained Property shall comply with any Estate Regulations which may be in force from time to time.

The Demised Premise = my apartment.
The Demised Parking Space = my parking spaces.
Estate Regulations = any reasonable regulations made by the Manager from time to time for the proper management and use of the Estate.

I suspect they may claim that the parking rules come under the Estate Regulations? There seems to be an issue with their terminology as "Allocated Parking Space" isn't defined in the lease and if they meant "Demised Parking Space" they'd have said that? It also seems a bit of a push using those terms to enforce parking restrictions and if that is ok, there is no limit on what they could do.

I'm waiting for a response from the managing agents for the paperwork showing the legal right for the parking company to issue tickets on my parking spaces. Will see how they respond.

Half_way

That is why you attack it on the reasonable regulations side, 
An unregulated third party charging  you to use your own space, or subletting it out for £100/day is unreasonable.
 Plus if the parking companies sole income from the site is through issuing parking tickets then it is in the parking companies best interest to issue as many parking tickets as possible which runs contrary to the residents best interest s and keeping the car park free from unwanted parking

If they were being reasonable then they should drop all charges,  once you tell them that you had authorised the vehicle to be there

jon_1827

Here is the defence I have so far. Comments/feedback appreciated.

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim refer to 'Parking Charge Notices' incurred between dd/mm/yyyy and dd/mm/yyyy. However, they do not state the basis of any purported liability for these charges, in that they do not state the location where the breaches are claimed to have occurred, what the terms of parking at that location were, or in what way they are alleged to have been breached nor the actual dates the breaches occurred.

3. It is admitted that at all material times the Defendant is the registered keeper of the vehicle with registration mark ???????? (“the Vehicle”) which is the subject of these proceedings.

4. It is admitted that during mmm yyyy the Vehicle was parked in parking space ### at building address (“the Parking Space”). It was originally parked in the Parking Space sometime during mmm yyyy and had not been moved since that time, nor was it moved until sometime later. It is not known who the driver was at the time the car was parked.

5. The parking areas at building address contain numbered parking spaces, the legal title to the majority are held by apartment owners, with the remainder allocated for use by an onsite gym. Entry to the parking is by means of a key fob or access code, which are only issued to authorised users of the parking spaces. Any vehicles parked therein are, therefore, de facto authorised to be there.

6. The Defendant has, since dd/mm/yyyy, held legal title under the terms of a lease, to Flat ## building address (“the Apartment”), this lease includes the legal title to the Parking Space.

7. Under the terms of the Defendant’s lease, references are made to the conditions for use of the parking spaces. These include a weight limit on the vehicle, only to park where authorised by the lease (ie in the listed parking space “###”), not to perform repairs on vehicles and to only park vehicles in a reasonable condition. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

8. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

9. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

10. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of the lease, which this parking firm is not a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

11. In the alternative, a valid parking permit was on display within the Vehicle, in accordance with the conditions on the signage. As such, it is unclear as to the basis of the Claimant’s claims and reasons for issuing Parking Charge Notices. The only condition stated on the signage in the car park states “Vehicles parking with a valid permit or ticket fully on display in the windscreen area. No exceptions. Park in a marked bay only where present.”

12. A parking permit was on display in the Vehicle, fully visible in the windscreen area, with the space number on the permit matching the parking space. This is evidenced by the photos supplied by the Claimant with the original Parking Charge Notices. As such the parking permit was valid and meets the conditions listed on signage. It is noted that there is no expiry, valid to or other indication that the permits validity is time sensitive in anyway.

13. In the alternative, the Claimant’s claim is for two separate Parking Charge Notices. The conditions on the signage state “If you enter or park on this land contravening the above terms & conditions you are agreeing to pay…Parking Charge Notice”. Given that the Vehicle had entered and parked only once, some six months previously with the Vehicle not being moved since, only a single Parking Charge Notice can be issued.

14. In addition, both of the Parking Charge Notices were appealed with the Claimant shortly after they were issued. The Claimant failed to adequately consider and respond to these appealrs – no response was received to one with the other was refused without explanation other than “Permit Invalid”.

15. The appeals were based on the fact that I was the holder of legal title to the Parking Space and that I had not and did not give them permission to perform parking management services. I requested them to provide supporting evidence that they were entitle to perform parking management services at the location, I received no response to this and to date have received no such evidence from the Claimant.

16. As such, the Claimants actions deprived me of the ability to settle the Parking Charge Notice at the reduced rate of £60 within 14 days. Accordingly I would request that if the Court finds in favour of the claimant that the claim be limited to £60, as any extra costs claimed have been due to their actions for which I should not be charged.

D_P_Dance

The presence of these companies in private car parks is a totally contrary to the best inerests of residents.  They depress rents and lower sale values.  

Le_Kirk

That does not look like the the template defence, also towards the end you have used "me" but all defences are written in the third person.  Template defence here: -
https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1
You can use this as the basis for yours and include additional points about it being a residential or authorised user claim.  You also need the latest statement of truth at the end.

D_P_Dance

they have added recovery costs of £120 ...

They have added what appears to be an extra unlawful amount for debt collection.

This amounts to double recovery and Judges all over the country are dismissing these spurious additions. Indeed some judges have dismissed entire claims because of this. Read this and complain to Trading Standards and your MP,

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

However, VCS appealed this so it may not apply in all cases, read this

https://www.dropbox.com/s/ntksx9g7177ahyg/VCS v Percy v1 Amendments (2).pdf?dl=0Also read this

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcripts-re-parking-firms-false-costs-recorder-cohen-qc-judgment-2021/p1

Also consider complaining to The SRA about the solicitor, if one is involved They are fully aware of the unlawful nature of most of thse additions yet persist in adding them..

https://www.sra.org.uk/consumers/problems/

jon_1827

Rather than use the main template, I based this on a couple of other defences on the forum that were specific to my case - ie tickets for parking in your own parking space. My problem with the bulk of the main template is I don't understand it and if it ends up in court I'm going to struggle arguing the case - this happened before with a credit card debt and it was a hindrance rather than a help. I don't want to go through that again.

My main interest is putting an end to the current parking management for my apartment block, so I want the main focus to be on them not having a legal/contractual right to issue parking charges. This is the point I need to win the case on and it's the one I'm more confident in winning with. I have other supporting evidence that means they don't really have a case - the lessor saying there are no variations and the management company saying all parking restrictions are documented in the lease (both in writing). 

As regards the additional recovery costs, it seems a weak argument to me especially given at least one judge has gone against it - I suspect more will especially as solicitors/claimants will use it.