Parking in Own Space

davids612lj

Thanks for that.

When you say 'supply a copy to a judge' do you mean a copy of the lease? I sent a copy of the lease in my evidence bundle.

Galloglass

davids612lj said:

Thanks for that.

When you say 'supply a copy to a judge' do you mean a copy of the lease? I sent a copy of the lease in my evidence bundle.

Yes.

As a side issue, who is the Freeholder / Head Leaseholder, the ones you pay ground rents to. They are usually some offshore trust somewhere with absolutely no interest in parking matters. How these parking companies get into the sites is a constant source of bewilderment to me. Especially since they are able to devalue leases and never seem to be kicked off site.

Sometime soon, a MA/RTM company will get hammered for losses due to bringing in one of these cowboys.

davids612lj

You're absolutely right. An company registered in Guernsey are the Freeholder. It was the MA who brought in these cowboys. Their answer to some residents blocking in others with their selfish parking.

Coupon-mad

The words 'exclusive right' have been tested on appeal already (unfortunately no transcript was ever obtained).

@Lamilad lay repped the appeal in that case, but I can't recall the case name. Maybe @bargepole can, and even if not I know he has a useful written judgement in a UKCPM case that will help you.

These charges are an attempt to extinguish rights and easements already enjoyed by the leaseholders.

Neither the servient landowner (nor their agents) can lawfully charge a sum for parking or impose new 'obligations' without a variation of the lease and certainly cannot unilaterally ride roughshod over leasehold easements.  Authorities for this include Kettel v Bloomfold (2012), the case they are relying on!
https://webstroke.co.uk/law/kettel-v-bloomfold-2012

And here is the L&T Act explained:
https://www.tanfieldchambers.co.uk/2014/01/10/variation-of-leases-under-the-landlord-tenant-act-1987/

You've already done your WS though and have a hearing coming up?

davids612lj

Yes. My WS is already filed. We have a date for the hearing. The reference to Kettel v Bloomfold is made in their WS. Do you think I need to file a response to it? 

Coupon-mad

Depends how comprehensive your WS and evidence already was and if you feel there is more evidence to add.

Galloglass

Nothing more to be added but look out for them trying to challenge "exclusive". This may be one of these cases where new tactics are being tried.

Kettel was about the "ouster" principle -  The  principle proposes that a right cannot  be an easement if it is so extensive as to  exclude the servient owner from using his  land by effectively “ousting” him from his  property altogether. So Kettel was all about (and apologies for the oddness of this) the degree of "exclusivity" which requires the judge to look at the lease rather than assume exclusivity. 

I would question why an offshore Freeholder is actually that bothered about the "ouster" principle. They only want the ground rents. [Addition:] More importantly, this is not the Freeholder or the Freeholder's agent arguing about meanings within a lease, this is a subcontractor trying to expand their control over an area that already has arrangements between the parties set out. 

So it is going to come down to two competing "exclusive" rights. Your exclusive right granted to you by the Freeholder to use the space for parking (dates will be important) and the possibly later exclusive right to manage car parking for the Freeholder. Is one more exclusive than the other? So it will most likely require you to attend and defend. 

In the meantime you may want to get the lease wording checked. The Leasehold Advisory Service (https://www.lease-advice.org/) offer a wide range of advice on Leases and might be able to give you a handle on the clauses you need to oust the ouster principle.

davids612lj

I finally heard from the Court in my reply to my email asking to consolidate the 2 cases against me.  They confirmed their previous advice: "To have this request processed and reviewed by a District Judge, you need to make an application using the N244 form. You can find this online."

Does anyone have knowledge and experience of this process as I am confused  The N244 form seems to be a general form used for several different purposes. Having read the guidance notes,

1. I'm not sure whether I need to attach documents? (ie WS)
2. Do I have to pay a fee for this application?
3. Is it worth doing at all? (The 2 parking charges were for 2 consecutive days. Everything else is identical)

Hope someone can guide me onto the right path with this

Thanks again.

B789

I believe that an N244 fee is £275 but I stand to be corrected. There is whole list of court fees published here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1056796/ex50a-civil-and-family-court-fees_March_2022.pdf

Coupon-mad

davids612lj said:

I finally heard from the Court in my reply to my email asking to consolidate the 2 cases against me.  They confirmed their previous advice: "To have this request processed and reviewed by a District Judge, you need to make an application using the N244 form. You can find this online."

Does anyone have knowledge and experience of this process as I am confused  The N244 form seems to be a general form used for several different purposes. Having read the guidance notes,

1. I'm not sure whether I need to attach documents? (ie WS)
2. Do I have to pay a fee for this application?
3. Is it worth doing at all? (The 2 parking charges were for 2 consecutive days. Everything else is identical)

Hope someone can guide me onto the right path with this

Thanks again.

I wouldn't bother.

Kill off the first one then attack the other citing Henderson v Henderson in the second case WS.