CCJ from Old Address - Seeking Advice on Draft Order and WS

1505grandad

Apologies but I am not clear on the subject re:-

"3.1 The Defendant had been a leaseholder of the flat at X since March 2018 – June 2021, "

However most of the thread states "Tenant" i.e.:-

"There is almost no mention of parking in my tenancy agreement - in fact the only mention is the following:

The Tenant acknowledges they have been made aware that as part of the Landlord’s planning obligations (1.1. under Schedule 4 of the S106 Agreement) the Tenant or any resident or occupier of XXX is not permitted to use or apply for a permit to park a vehicle in a place designated in an Order made under section 45(2) of the Road Regulation Act 1984 (unless the occupant is the holder of a disabled person’s badge issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970)"

When I research I am still none the wiser:-

http://lawoffice.co.uk/lease-or-tenancy.aspx

"Question: What is the difference between a lease and a tenancy?

Answer: There isn't one. They both mean the same. Equally the terms landlord and lessor are the same, and tenant and lessee are the same too.

In practical use, which terms are used tends to depend on the length of the arrangement. If its for week to week or month to month it tends to be called a tenancy. If its for a period of years it tends to be called a lease. Also for business premises there is a slight tendency to use the term lease more often than for residential premises."

I just wonder if it is ok for the OP to use use both for Court submissions?

Coupon-mad

No. A leaseholder is a flat owner.

Troublesum1

Coupon-mad said:

Remove 3.8 and 3.9 (out of date and no point trying) and the rest is all good to fit within the usual template defence.

As your deadline must be next week or later, then WAIT!  No rushing the defence early and this is why:

https://forums.moneysavingexpert.com/discussion/comment/80201586/#Comment_80201586

Whatever the DLUHC publish, I can pretty much guarantee that I will be editing the Template Defence.  You want the latest version!

Thanks coupon. My deadline is 7th August so I will wait!

Thanks @1505grandad I will make sure to edit and refer to myself as tenant (as well as referring to the document as a tenancy agreement).

Coupon-mad

I edited the Template Defence last night because the DLUHC has published a useful analysis of the truth about the false DRA 'fees' so it's there to be read, understood, adapted and used.

Troublesum1

Thank you coupon I have seen the updated template defence and I have used it. I have adjusted point 3 based on @Coupon-mad and @1505grandad's advice please let me know if you see anything wrong:

3.1 The Defendant had been a tenant of the flat at X since March 2018 – June 2021, and UKCPM were brought in to operate a permit scheme in 2019. The residential car park can only be accessed by via a gate, all residents with a permit were given means to access via said gate. Some spaces are numbered, and allocated to specific flats, while the rest are unmarked, and available on a first come, first served basis. The defendant parked in a numbered bay.

3.2 The Defendant’s tenancy agreement makes no mention to parking restrictions and therefore de facto grants them a right to park subject to vehicles being taxed and roadworthy, with no commercial vehicles, caravans or trailers permitted.

3.3 There are no terms within the tenancy agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

3.4 The Defendant, at all material times, parked in accordance with the terms granted by the tenancy agreement. 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 tenancy agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

3.5 The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the tenancy agreement, must have such variation approved by at least 75% of the tenants, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents

3.6 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 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.

3.7 The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

3.8 Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

3.9 In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

3.10 The defendant would also like to remark that the PCN was not a windscreen PCN and was issued as a NTK which was delivered after the date of the Defendant moving to another residence, therefore the defendant knew nothing about the PCN and had no opportunity to appeal it at the time.

I do wonder should I keep point 3.2? Kind of feel like it weakens my defence and maybe I don't need to say it as point 3.3 gets across my main point.

Hoping this is now good I will look to get this sent off tomorrow or maybe on Thursday just because I have a busy schedule but honestly from the bottom of my heart thank you all for the support

Coupon-mad

Yes you could drop 3.2 and then I would re-number the entire defence with 'normal' sequential numbering. 

Troublesum1

Coupon-mad said:

Certainly give them the VRM! That's the first thing to supply to a PPC and I am constantly amazed people miss it out.

You just email the (suitably adapted) template defence from the sticky thread of that name but send it to the local court and with the C's solicitor copied in.

NOT TO THE CCBC OF COURSE!

So finally ready to send this off, will do it in the morning, just want to make sure this is all I need to do? How do I confirm the email address I have for the court is the correct one? Thanks again all

Coupon-mad

Ring them if unsure.

Troublesum1

Defence sent. Many thanks all, now just wait and see I assume?

Troublesum1

Good evening all,

So my court date has been set for this matter, for 9th Novemember 2023 at 10am, with a time estimate of 3 hours. Apologies for my lack of updates I did find this out a few weeks ago but I'm currently preparing for the birth of my firstborn (due in less than a week) as well as normal adulting. So today I received the Claimant's witness statement. In which the claimant notifies the court that they will not be attending the final hearing. The witness statement is fairly large but reading through it the crux of their argument against my defence is as follows:

1. They have authority to manage and enforce parking rules via a Landholder agreement
2. T&C state valid permit must be clearly displayed in front windscreen at all times
3. They make mention to not having seen the tenancy agreement that I (the defendant) refer to
4. Then, maybe unfortunately for me, they say "the Defendant's Landlord was not entitled to give any rights to Defendant in relation to parking or otherwise, pursuant to the terms of the Lease dated 19th January 2017"

So point (4.) is quite worrying to me. The document they have attached to the WS is about 40-50pgs and after skimming through it I see nothing really of note. in the WS the part of the lease they quote is the following: "Clause 12.1 of the Lease states 'the Tenant shall not grant to any third party any rights of any nature over the premises." So by Tenant in this lease they are referring to my Landlord a this time. On the face of it that seems quite damning for me. Only thing maybe I can argue is I've taken my tenancy agreement as the authority on the matter and had no way of knowing the terms of the lease between my Landlord and their Landlord?

Any help would be greatly appreciated. I guess I need to submit my WS soon too - thanks in advance all!