Residential Parking Charge - Advice Please

womblecat

I don't I'm afraid, I binned it not long after it broke and it was only saved locally rather than backed up anywhere - hindsight!

Le_Kirk

womblecat said:

I don't live there anymore, I only rented the flat for a year from the lettings agent which has now shut down. I think it will be impossible to get a copy now as you say. Unfortunately I don't have any contact details of anybody there from when I lived there.

Thank you for your help and reminding me that the onus is on the claimant. Would you adapt the Residential defence that refers to no parking conditions and include a sentence in the Defence that the lease is unavailable due to the reasons given? Then it's not expected that I will produce the lease at a later date?

I would use a combination of the standard defence template and plus whatever parts of the residential defence helps.  I would leave it at that for reason already stated unless others have a different suggestion.  What is you memory of the lease, did it require you to display a permit, pay a fee (other than your rent) or any other condition?

womblecat

Ok thank you.
As I say it was a fair few years ago but from memory the lease didn't give any stipulations regarding permits or fees. I was given a permit by the Lettings Agent along with a key fob for the shutters. I paid my rent over to the letting agent and there was never any separation between rent/parking.
The signs around the car park did mention displaying a valid permit - and I was using the permit, it had just slipped down and the date was no longer visible. I received the charge 10 months into living there and had been parking throughout.

Le_Kirk

Even better if you had a key fob, you were de facto authorised to park there and did not need a permit, which of course you were only displaying out of courtesy!

Coupon-mad

Le_Kirk said:

Even better if you had a key fob, you were de facto authorised to park there and did not need a permit, which of course you were only displaying out of courtesy!

Which is already written in one of the linked residential defence examples in the NEWBIES thread.

womblecat

Thanks both - I had seen the part regarding the key fob but didn't know if the signs stating permits must be displayed overruled that which was bringing me back to worrying about the copy of the lease. I'll have a go at adapting the defence and including the part around the key fob and my memory of the lease agreement. Thanks again

Coupon-mad

The signs would ALWAYS say words to the effect that "permits are needed", you'd never ever find a case with no such signs!

This case is like yours and I just posted a link to case law you can use:
https://forums.moneysavingexpert.com/discussion/6377659/claim-form-for-parking-charges-in-2018/p1

womblecat

I've drafted a defence and copied the points below (the ones that I have added). I have currently got the rest of the template defence, do you think that is appropriate or would I be better using Bargepole's template defence (shorter, regarding the key fob)?

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The Defendant had an Assured Shorthold Tenancy Agreement with XXX (Lettings Agent), which commenced on XXX and expired on XXX. The tenancy agreement included 1 x Parking Space in the car park underneath the block of flats, accessed via roller shutters.

4. The Defendant can not provide a copy of the lease document to the Court as the Defendant’s laptop from the time of the lease has since broken, and the Lettings Agent has since closed down, therefore are unable to provide a copy. As far as the Defendant can recall, the lease did not stipulate that the car being parked must display a permit or that the lessee of the flat would be subject to the Claimant’s terms and conditions.

5. The signage displayed by the Claimant on entry to the underground car park specifies “No unauthorised parking”. The underground car parking area contains parking spaces demised to residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

6. 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. The Defendant had been displaying a permit out of courtesy, rather than an obligation, however this had slipped down the dashboard causing the expiry date to not be visible.

7. Further and in the alternative, the signs refer to 'No Unauthorised Parking’, and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £90. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract.

8. The Defendant's vehicle clearly was 'authorised' as per the lease and the use of the key fob for accessing the car park, 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.

9. 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 £90 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.

10. 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.

11. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £90 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £90 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded

Please let me know your thoughts, this is definitely not my area of expertise so very appreciative of all the help given!

KeithP

I would leave out paragraph 4.
It does nothing to support your case.
In fact, quite the opposite - it suggests an opening that the Claimant might try and exploit.

womblecat

Thanks @KeithP - I thought with me mentioning the lease in paras 3, 6 and 8 that I should explain why I can't provide a copy. Happy to leave it out, just wondered if I'd be better preempting being asked for a copy and not being able to provide.