Help With Flashpark PCN Please

Apollo18

fisherjim said:

Flashpark are a cheap end fly by night company that have hit on an internet based parking ticket scam with maximum return for very little outlay, I doubt they would want their scheme outing in court.

They don't even visit sites, the signage is posted out and the self ticketing operation is done by a web portal.

I am surprised that they are allowed to get away with it by the BPA (or maybe I'm not).

In my view they contravene so may principals of the BPA COP.

Where are the site audits

Where are the self ticketing training records.

Where are the registration details of all the self ticketers.

Do the self ticketing agents get a back hander it is stickily forbidden.

If this went to POPLA I would ask them to produce their site audits and training records required by the BPA COP.

5.4 Self-ticketers must be registered with the BPA before
they are able to issue a Parking Charge or their operator
can request keeper data relating to a parking incident.

15.5 All operators offering self-ticketing will be required
to register the organisations that they look after with
the BPA and supply photographs of the locations that
they manage, showing the signage in place within their
registration documentation.
15.6 All self-ticketing sites should be visited by the operator
prior to any enforcement action being taken, unless there
is an exemption by the ATA.

15.8 The practice of offering financial incentives relating to the
quantity of parking charge notices directly to the person
who issues a parking charge notice or gathers evidence
for one, in a self ticketing or similar arrangement is
prohibited.
15.9 Operators are required to ensure that the self-ticketing
organisations that they have responsibility for, undertake
appropriate training.

Very interesting - thank you!

pinkelephant12

As I understand it, DVLA requires operators to enter a different KADOE code if the request for keeper details is based on a self-ticketing operation.  This would show up on a data subject access request for the vehicle.  It might be worth getting your tenant to do this to check that the parking company is being honest with DVLA.  

It can be done by email: SubjectAccess.Requests@dvla.gov.uk

Apollo18

KeithP said:

Apollo18 said:

Thank you so much for that helpful information pinkelephant12

Looking at the Memorandum of Association that were written when the company was incorporated, I can see two points which may relate to giving power to contract parking contractors:

<<<snip>>>

I could set up a company with the objective of selling Buckingham Palace but I am pretty sure that doesn't give me the right to do that.

So they have objectives, but do they have the rights to be able to meet those objectives? I suspect not.

Mouse007 said:

I think your right is an easement. You as the owner and your tenant as the resident have the right to use the Amenity Land.

The company was formed 50 years ago and then for 42 years you and previous owners enjoyed continuous unrestricted and unconditional access and use. That is well in excess of 20 years required by the Prescription Act 1832.

Threaten to sue the Management Company for Derogation from Grant and tell the director he needs to get urgent legal advice if he does not understand what that means.

https://emgsolicitors.com/relocation-parking-spaces-amounted-derogation/

https://www.christophercant.co.uk/wp-content/uploads/2020/09/Dont-mess-with-parking-rights-Corporate-Briefing-–-September-2012.pdf

https://cms-lawnow.com/en/ealerts/2001/01/interference-with-parking-rights

 I sent a letter threatening to sue for Derogation from Grant as owners have always had the right to use the Amenity Land without charge of limitation and the directors are now restricting use by demanding residents use a parking permit or receive a PCN.

The directors of the residents' company have replied to me saying that owners of the properties are NOT entitled to the unrestricted and unconditional use and access of the Amenity Land without any charge or limitation (which my letter claimed).

[Note that the residents' company is formed by the property owners , some of which are directors].

They say it is the directors of the company (also owners) who are responsible for its management and that the objectives of our Memorandum of Association of the company include: "To make regulations for the use of Amenity Land by owners and occupiers of XXX, their families, servants and friends."

They go on to say: "The covenant every owner is subject to includes: "the right in common with all others entitled thereto to use the Amenity Land for the purpose of access and amenity but the exercise of this right shall be conditional upon the observance of the regulations set out in schedule X hereto and such other regulations or demands that may in future be made by the Residents' Company pursuant to the powers contained in its Memorandum and Articles of Association.""

"The directors have made lawful rules in relation to the management of car parking on the Amenity Land. These remain in place and owners of vehicles parked on the Amenity Land must observe them."

Any opinions on whether the above gives them the right to demand the use of parking permits and enforcement agents?

Coupon-mad

Have you deployed their breach of the Landlord & Tenant Act weapon yet (search the forum if not)?

Mouse007

Coupon-mad said:

Have you deployed their breach of the Landlord & Tenant Act weapon yet (search the forum if not)?

I’m not sure any breach of the Landlord & Tenant Act is relevant here. The homeowners are not tenants, they rent nothing.

Apollo18 said:

I sent a letter threatening to sue for Derogation from Grant as owners have always had the right to use the Amenity Land without charge of limitation and the directors are now restricting use by demanding residents use a parking permit or receive a PCN.

The directors of the residents' company have replied to me saying that owners of the properties are NOT entitled to the unrestricted and unconditional use and access of the Amenity Land without any charge or limitation (which my letter claimed).

[Note that the residents' company is formed by the property owners , some of which are directors].

They say it is the directors of the company (also owners) who are responsible for its management and that the objectives of our Memorandum of Association of the company include: "To make regulations for the use of Amenity Land by owners and occupiers of XXX, their families, servants and friends."

They go on to say: "The covenant every owner is subject to includes: "the right in common with all others entitled thereto to use the Amenity Land for the purpose of access and amenity but the exercise of this right shall be conditional upon the observance of the regulations set out in schedule X hereto and such other regulations or demands that may in future be made by the Residents' Company pursuant to the powers contained in its Memorandum and Articles of Association.""

"The directors have made lawful rules in relation to the management of car parking on the Amenity Land. These remain in place and owners of vehicles parked on the Amenity Land must observe them."

Any opinions on whether the above gives them the right to demand the use of parking permits and enforcement agents?

The directors are clearly devoid of legal knowledge - an easement can not be interfered with. Have another look at the second link in my original post.

Refer them to Kettel v Bloomfold where the Judge assessed the damages for messing with parking rights would, in that case, amount to £517,500.

You need to be very clear about who actually owns the Amenity Land. Is the freehold land shown on the balance sheet of the management company? When you refer to it as jointly owned I think you might be misplaced. I suspect it is owned by the company which in turn is jointly owned by the home owners.

You should also have a look at your own title deeds (available online for £3 if not to hand). These should confirm your rights. I for example have the right to draw water from the well in my neighbours kitchen. Is the quoted covenant in your title deeds?

You need to assert that the directors have not made lawful rules, they have interfered illegally with pre existing rights for which they can be sued in court. These pre existing rights flow from the unrestricted historical use for over 40 years under the Prescription Act 1832.

If it was me a strong reply would be copied to all addresses with a demand that the PPC be removed, all PCN cancelled and the directors personally cover the cost for their Ultra Vires conduct.

Coupon-mad

Mouse007 said:

Coupon-mad said:

Have you deployed their breach of the Landlord & Tenant Act weapon yet (search the forum if not)?

I’m not sure any breach of the Landlord & Tenant Act is relevant here. The homeowners are not tenants, they rent nothing.

The L&T Act is about leasehold owners.

Not 'tenants' in the rental sense.

As has been said, the leases will normally say something about having a right to peaceful enjoyment. Introducing a new charge and PCN risk - where a greedy bullyboy PPC targets the residents themselves - is not 'reasonable regulations'.

It's interfering with homeowner rights and easements.

A fundamental change to the lease (to add an onerous charge and intimidating regime like this) cannot be carried without a ballot of all leaseholders, in accordance with Section 37, Part IV of the Landlord and Tenant Act 1987.

There must be a majority in favour of the amendment, with no more that a certain number of objections, for the change to be approved.

Landlord and Tenant Act 1987 (legislation.gov.uk)

Mouse007

Coupon-mad said:

Mouse007 said:

Coupon-mad said:

Have you deployed their breach of the Landlord & Tenant Act weapon yet (search the forum if not)?

I’m not sure any breach of the Landlord & Tenant Act is relevant here. The homeowners are not tenants, they rent nothing.

The L&T Act is about leasehold owners.

The OP is not a leasehold owner, they are a Freehold Owner.

Coupon-mad

OK - I confess I haven't read that Act section in ages - but it isn't about rentals, so maybe it helps the OP.  Not sure. They should read it for themselves.

Mouse007

The tenancy is a distraction - one to be ignored here. The OP, a freehold owner wishes to assert his/her rights to protect those of their tenant.

Your confusion probably flows from the fact that the OP rents out their property, they are a private freehold landlord, not a tenant nor a leaseholder. They have not changed anything (relevancy of  Landlord & Tenant Act) they are trying to defend their tenant from changes made by a management agent to easement rights over amenity land.

This is a private freehold estate with a jointly owned amenity area. It appears to me (OP to confirm) that the amenity land is actually owned by a limited liability company - at law a separate legal person. The freeholders around this land have rights over this land, easements.

I’m not distracted by the point that the freeholders own the limited liability company, the separate legal persons is enough.

The freeholders individually own dominant land. The Company owns servient land. Each and every freeholder has rights over the servient land. These rights benefit the dominant land owners and burden the servient land. Each two pieces of land are within different ownership and it is possible for the servient land owner to grant the right to park.

They had done so for over 40 years.

Case over in my book.

pinkelephant12

Mouse007 said:

The freeholders individually own dominant land. The Company owns servient land. Each and every freeholder has rights over the servient land. These rights benefit the dominant land owners and burden the servient land. Each two pieces of land are within different ownership and it is possible for the servient land owner to grant the right to park.

They had done so for over 40 years.

Case over in my book.

I agree with everything @Mouse007 says.

But back to basic contract law.  A contract requires 4 main elements: offer, acceptance, consideration and intention to create legal relations.

The allegation is that your tenant entered into a contract with FlashPark.  Aside from the obvious fact that your tenant couldn’t comply because they didn’t have a permit, where is the consideration from FlashPark?  This is always the issue in residential cases.  What, of value, did FlashPark have to offer?  You (and your tenant) already had the right to park. 

I would hammer home the fact that there couldn’t be an enforceable contract with FlashPark and whoever contracted with them to manage the site could be jointly and severally liable for any wrongdoing by them.  Where a director abuses their position, they can be personally liable (especially if they have taken the photos knowing who the car belonged to, breaching data protection law).  The longer this goes on, the higher the damages are likely to be.