CCBC Claim OWN PARKING SPACE KBT CORNWALL/BWLEGAL

madmati

Fruitcake said:

Para 5 should refer to charges not penalties.

Para 7 should read Section 37 of Part IV of the Landlord and Tenant Act 1987. Delete the comment about being unaware of a ballot and instead state that no such ballot ever took place, and the claimant is put to strict proof the contrary is true, and put to strict proof that they have a right to vary the defendant's lease, or words to that effect.

Thank you, I based this on another defence by user @jon_1827 and the keyfob case from the topic for newbies. I will adapt it to your instructions

Coupon-mad said:

I don't think this argument is likely to win any favours with the Judge. Clearly on the balance of probabilities your parked the car.  It is surely incompatible with a ticket at your own home:

The Defendant does not know who drove the vehicle when it was parked. Defendant is a driver for a large taxi company. He often has to swap cars with other drivers and it is very difficult to determine who might have been parking there at the time.

In @jon_1827 defence  he mentioned that the car he got a ticket for was a convertible that he doesn't use most of the time and he's not sure who was driving, him or his brother. I have adjusted this into my real life situation, but I understand that this is pointless?

Jenni_D

Are you saying that another driver from the taxi company may have dropped the car there in your assigned parking space, ready for you to use on your next shift? Regardless I don't think this really helps you too much, and suggests your parking space was being used as part of a business, so it may be best to drop that line and accept you were the driver ... this adds weight to your primacy of contract point.  

madmati

Jenni_D said:

Are you saying that another driver from the taxi company may have dropped the car there in your assigned parking space, ready for you to use on your next shift? Regardless I don't think this really helps you too much, and suggests your parking space was being used as part of a business, so it may be best to drop that line and accept you were the driver ... this adds weight to your primacy of contract point.  

This claim is about my private car. During the work week I drive my company taxi, on my day off I take my private car back, or is bring and swap by my workmates. Is that makes any sense? Anyway, I'll accept I was a driver.

madmati

I have updated the defence according to your advices. Unfortunately, I'm working a lot at the moment and don't have the opportunity to dig deeper into the defence. Any feedback please. Does this defence have any chance in court? one of the evidences will be the witness statement should I mention it here? Thank you!

Jenni_D said:

so it may be best to drop that line and accept you were the driver ... this adds weight to your primacy of contract point.  

Fruitcake said:

Para 5 should refer to charges not penalties.

Para 7 should read Section 37 of Part IV of the Landlord and Tenant Act 1987. Delete the comment about being unaware of a ballot and instead state that no such ballot ever took place, and the claimant is put to strict proof the contrary is true, and put to strict proof that they have a right to vary the defendant's lease, or words to that effect.

Coupon-mad said:

I don't think this argument is likely to win any favours with the Judge. Clearly on the balance of probabilities your parked the car.  It is surely incompatible with a ticket at your own home:

The Defendant does not know who drove the vehicle when it was parked. Defendant is a driver for a large taxi company. He often has to swap cars with other drivers and it is very difficult to determine who might have been parking there at the time.

2. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. 

3. It is admitted that on [date] the Defendant's vehicle was parked at [location]

4. Spaces are unmarked, and available on a first come, first served basis. It is admitted that on [date] the Defendant was a driver and had parked in one of these. 

5.  The Particulars refer to the material location as "LOCATION'. The Defendant has, since 26 November 2018, held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

6. When purchasing the leasehold for the property on 26/11/2018, the Defendant was also granted permission for unlimited access to a parking space throughout his tenancy from the landlord's father, because the family owns both flats and has the exclusive rights to that bay.

7. The parking company started operating the car park a few years after Defendant moved in. Despite this, the terms of its lease have not changed. Therefore, any claimant's claims are unreasonable

8. There are no terms within the lease requiring lessees to display parking permits, or to pay charges to third parties, such as the Claimant, for non-display of same.

9.  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.

10.  The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to Section 37 of Part IV of the Landlord and Tenant Act 1987. No such ballot ever took place, and the claimant is put to strict proof the contrary is true, and put to strict proof that they have a right to vary the defendant's lease, or words to that effect.

11.  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.

12.  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 charge 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 leases and tenancy agreements, none of which is this parking firm 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.

13. The permit is in the form of a sticker and, after one use, it is not suitable to stick again. The parking company does not issue new permits and all enquiries were ignored. All this leads to a situation where permits peel off and fall off the windscreen.

Jenni_D

No need to mention a WS in the defence ... a WS is a given should the claim proceed.

You mention lease a lot ... don't you have a tenancy agreement rather than a lease?

Other than that, to my untrained eye (and assuming you've included the other template defence points and the Statement of Truth) that looks OK.

madmati

Jenni_D said:

No need to mention a WS in the defence ... a WS is a given should the claim proceed.

You mention lease a lot ... don't you have a tenancy agreement rather than a lease?

Other than that, to my untrained eye (and assuming you've included the other template defence points and the Statement of Truth) that looks OK.

English isn't my first language, this is why I don't really understand difference between tenancy agreement and a lease. I have a Assured Shorthold Tenancy Agreement

Jenni_D

A lease would mean that you own the property (but someone else - the freeholder - owns the land).

A tenancy (which is what your AST is) means you are renting property owned by someone else (the landlord).

Therefore as a renter then you cannot have a lease ... so any references in your defence regarding rights conferred by a lease would only apply if they were mentioned (or not, as the case may be) in your AST terms. But of course any rights your landlord has (in their lease) automatically flow to you - the tenant - unless your AST removes any of those rights. Therefore it's important that you differentiate your rights (AST) with the landlord's rights (lease) and word it accordingly in your defence.

For example, 6 as currently written is not true ... you did not purchase (lease) the property in 2018, your landlord did. Or do you mean that you started your first AST in 2018?

jon_1827

madmati said:

In @jon_1827 defence  he mentioned that the car he got a ticket for was a convertible that he doesn't use most of the time and he's not sure who was driving, him or his brother. I have adjusted this into my real life situation, but I understand that this is pointless?

To clarify, this was because the parking charge was from 4 years ago and I genuinely couldn't remember who parked the car up at the time. This wasn't a ploy, I was just telling the truth - it could have been either of us.

Be careful when copying any other parts of my defence and witness statement as I believe my circumstances were different to yours. Mainly that the parking space wasn't allocated to me, I was the legal owner of it.

madmati

For example, 6 as currently written is not true ... you did not purchase (lease) the property in 2018, your landlord did. Or do you mean that you started your first AST in 2018?

I started my first AST in 2018. Now I check my defence carefully again.

jon_1827 said:

madmati said:

In @jon_1827 defence  he mentioned that the car he got a ticket for was a convertible that he doesn't use most of the time and he's not sure who was driving, him or his brother. I have adjusted this into my real life situation, but I understand that this is pointless?

To clarify, this was because the parking charge was from 4 years ago and I genuinely couldn't remember who parked the car up at the time. This wasn't a ploy, I was just telling the truth - it could have been either of us.

Be careful when copying any other parts of my defence and witness statement as I believe my circumstances were different to yours. Mainly that the parking space wasn't allocated to me, I was the legal owner of it.

Ok, thank you for clarifying. I'll resd your post carefully again. Defences wording is a bit complicated, and translators don't make it any easier.