parking and leasehold

Leo2023

I hope you can help me with a question on parking and leasehold. Apologies, it requires a bit of explanation.

I am the leaseholder of a flat in a block of ca. 45 flats (in England), but do not own a parking bay. The outside area on the lower ground floor that is part of the property has privately owned parking bays as well as space for 1 or 2 vans which would not obstruct access. (I usually leave my mobile number in the window if I use the free space to park, e.g. to move furniture.) 

Since 10 August, a company, operates a penalty parking scheme on the lower ground floor (@ £100 per offence). Their T&Cs prohibit any parking outside the privately owned bays. This was put into place by the management company to deal with some rogue parking in privately owned bays. In the last couple of days the spaces where a van could park without hindering access were marked out with yellow lines, prohibiting parking. 

I have not been informed about the penalty parking scheme, but heard about it from neighbours on 5 August. Apparently, some relevant letters both by the management company and the parking company were only handed to residents or got lost in the post. 

The mutual covenants in the lease say

a) No commercial vehicle (exceeding 15 cwt. unladen weight) shall be parked at any time on any parking space or any part of the estate except for temporary use of removal or delivery vans.

b) Not to permit any vehicle of any description belonging to the leaseholder, his family, servants, visitors or licensees to remain on the parking space or any part of the estate in such manner as to obstruct the ready approach to any part of the estate

There is no lease clause relating to fines or right/s to vary the lease.

From that I conclude that I have the right to access the lower ground floor area temporarily for commercial deliveries/removal and for private access e.g. for private deliveries or for visitors, and I cannot be fined for such access. Is that correct? 

In case relevant, there is a longer, ground-floor pedestrian path that would work for smaller deliveries, but delivering bulky items would be difficult to impossible. Deliveries to the lower ground floor area are much more convenient because a van can park there with easy access to the basement door and elevator. There is space to park a van in front of the pedestrian gate or the car gate outside the property (still on private land), but parking there would obstruct access.

Lease-Advice.org says under “Understanding your lease” “Rights granted with the property” that the “...landlord cannot simply obstruct your right of way or take it away. If your landlord tries to do this, you may be entitled to compensation or possibly even an injunction to protect your rights.” Are my rights under the mutual covenants quoted an easement and does Lease-advice’s quote apply in my case?

Can I demand that the management company removes the penalty parking scheme or renegotiates it to apply only to the privately owned parking bays? Can I demand that the new yellow lines be removed? What is the best way to achieve that? 

Can I demand the management company voids or pays any fines I receive for access in line with the lease clauses?

Am I right that the management company will have to indemnify the parking company? How can I prevent paying for that through the service charge?

As a related issue, the button that allows to open the car gate from inside the grounds doesn’t work. Hence I cannot currently access the lower ground area or get deliveries to the basement door. Can I demand that this gate opener be repaired and kept in working order? What recourse do I have if that doesn’t happen?

I have complained about the scheme to the management company from 5 August, but so far only heard back today that a co-ordinator has been allocated to the complaint. I am dissatisfied with the speed my complaint is being dealt with.

I would also be grateful for pointers to relevant legal precedent.

Many thanks

B789

This is quite complex but, if I am understanding one of your issues correctly, you don't own a parking space but you sometimes park your van in one of the previously unmarked loading bays. However, your lease says:

 No commercial vehicle (exceeding 15 cwt. unladen weight) shall be parked at any time on any parking space or any part of the estate except for temporary use of removal or delivery vans.

If you park your van, you are already breaching your lease as I doubt your van is less than 15 cwt (750kg). Even then, it only mentions "temporary use" meaning whilst delivering, loading or unloading.

Then again, as your lease makes no mention of any third party being allowed to issue invoices or additional parking restrictions, you could ask the management company whether they complied with Section 37 (5a or 5b) of the Landlord and Tenant Act 1987 before altering the terms of your lease.

https://www.legislation.gov.uk/ukpga/1987/31/section/37

Leo2023

Thanks for your response. Just to clarify an apparent misunderstanding. I previously parked on the lower ground floor to move furniture into the flat, i.e. only for a couple of hours every time. The van didn't obstruct access and I had my mobile number in the window in case somebody found it inconvenient. I had rented the van, i.e. it was not a commercial delivery, so b) in the original post would be relevant.
I read the wording you quoted as saying commercial deliveries in vans < 750kg are always acceptable, commercial deliveries in vans > 750 kg can only park temporarily. 

B789

Thanks for the clarification. The wording you quoted from the lease regarding 15 cwt or greater commercial vehicles refers to temporary parking for the reason of loading or unloading. The only other interpretation of it I could make out is that if your commercial vehicle is less that 15 cwt, then it could park at any time on any parking space.

With regards to any alteration of your lease, refer to the Landlord and Tenant Act 1987 I referred you to. Was any ballot held for the lease holders and were the results of the ballot in accordance with the Act in terms of majority and objections?

When it comes to loading or unloading, that is not parking and is usually defended referencing Jopson v Homeguard. https://www.dropbox.com/s/9ezhkj6epu66l1r/JOPSON-V-HOMEGUARD-2906J-Approved.pdf?dl=0

Have you received a PCN from the parking company or are you just expecting one?

Leo2023

There was an attempt to consult, but that was abandoned because the management company thought the number of responses was insufficient. I haven't received any letter about the consultation and am not clear which proportion of residents have receive it. 
A representative of the management company appears to believe it helps that the matter was discussed in a WhatsApp group. However, residents outside this group were not made aware that this was discussed. From what I know the discussion didn't take the form of a ballot/vote. This WhatsApp group was started by some residents discontent with their service charges. Several residents aren't taking part because related meetings weren't convenient. In my view that's not a way to legally alter a lease (related to the link to the Landlord and Tenant Act 1987 you shared). 

In my experience, deliveries e.g. of white goods require installation and may take 2 - 3 hours (and also involve loading large amounts of empty packing back onto the van. To my mind such use involved parking. From the reference you sent it might still be considered unloading and loading. 
What I am concerned about in the near term is a parking fine for a delivery I am expecting (or the great inconvenience trying to manoeuvre a heavy, bulky item down the pedestrian access which has some 90 degree bends) as well as any future deliveries. I am also concerned about any house move which couldn't reasonably be done without access to the elevator via the lower ground floor. Moving the furniture of a 1-bed flat could easily take 5 hours. Again, it's not clear to me whether that would be loading in legal terms.
Lastly, I am concerned about a lower resale value for my flat if the parking scheme makes access impossible even though it's in line with the lease.

Leo2023

Forgot to say; thanks also for the link to Jopson vs Homeguard Services.

Coupon-mad

Leo2023 said:

There was an attempt to consult, but that was abandoned because the management company thought the number of responses was insufficient. 

They can't do that.

n my view that's not a way to legally alter a lease (related to the link to the Landlord and Tenant Act 1987 you shared). 

Yes that is right.

Do you have legal cover in your Home insurance? Probably worth sending the MA and the parking firm a solicitor's letter even if that costs you a small fee.

Or do the letter that this person and other leaseholders did:
https://forums.moneysavingexpert.com/discussion/5997200/pcm-company-introduced/p1

Refuse to accept this detriment and interference.  If the MA still stall you and don't sack the unwanted parking firm, ask the MA for ADR (there is protection for leaseholders where you can take disputes to ADR at no cost to you). 

Leo2023

Thanks again. An additional question; the MA appears to be playing the long game. Do I need to consider any deadlines in order not to lose my legal rights, e.g. to take them to court if that should be necessary? I have considered The Property Redress Scheme because the MA is a member. The MA mentions the housing ombudsman in a response. Both require exhausting the MA's complaints process or at least waiting 8 weeks for them to achieve a resolution. 

In other posts on MSE there is talk of 2 weeks to act, or a need to prevent the parking scheme before it starts. Is that relevant where the MA hasn't given any information prior to the introduction of the penalty parking scheme (or claims it has but the letters did not arrive)? Would they not have to send such a letter recorded? How does that sit with the ADR requiring using the MA's process first?

Can I pursue this alone or do I absolutely have to have support from other leaseholders (a concern because some may not appreciate the implications). 

I first formally objected on 7 August to the management company in an email with subject line "Objection to the introduction of a penalty parking scheme" with wording along the lines "... it appears that the parking scheme will restrict my enjoyment of my property in breach of the lease and will also reduce its value. I understand the technical term for such an action is tortious interference. I reserve any further representations on this matter and legal steps to preserve my enjoyment of my property and preservation of its value, i.e. my rights under the lease. I would also seek to recover any parking penalties from MA should the scheme go ahead. ... If MA has already contracted with a parking company they may have to pay the parking company a penalty for early cancellation. I would take further action should MA seek to recover any such contractual penalty through the services charges. ... I would be grateful for a swift confirmation that the proposed parking penalty scheme will not be introduced. If you cannot do that, please reply with the timescale for the resolution of this problem (i.e. the cancellation of the penalty parking scheme) and indicate the steps MA will take to achieve that resolution." I also made the point that I hadn't been informed or consulted ahead of the introduction. In a later email I said cancellation or amendment to be in line with the mutual covenants of the lease - thinking I couldn't object an arrangement in line with the lease clauses (an email of 5 August was more of an enquiry, sent on a Saturday).

Is that not sufficient as formal objection?

Where would I be able to find a solicitor who would write a relevant letter for a small fee?

Many thanks!

B789

Have you asked the MA to confirm when the lease was amended? They either say your lease has been amended according to the L&T Act 1987 and provide evidence of conforming to Section 37 of the Act or... they say your lease hasn't been amended.

Either way, I think that that has to be your starting point and a simple letter attached as a PDF to an email to them, CC'd to yourself is sufficient proof that you have sent the question.

Coupon-mad

I think that's a great formal objection.

Do you not have legal cover on your home insurance?  If so, they write letters free.

You need to tell the MA that you have reached an impasse and want their final response and access to ADR now.

And in the meantime, you refuse this change which is an wanted interference with the lease and you (and other drivers/keepers visiting your property) will NOT be liable for any worthless 'PCNs' issued by their unsolicited third party.  No contract has been agreed with their ex-wheel-clamper.  It is shocking that a professional Managing Agent appears to have completely missed that the private parking industry has just been declared a 'market failure' by the Government who are regulating parking operators and reining in rogue conduct such as this rubbish.  The MA should end the contract immediately or face an injunction and associated costs.

Half_way

As per coupn mad, you must come down like a tonne of bricks on the MA and be pro active in getting rid of this nonsense from the start.

 The longer you leave it the harder it gets.

From my understanding, is the parking area on a first come first get basis? ( with the exception of the privately owned "bays")

 And prior to the Parking company being imposed, how long have you had use of the car park?

 and for how long has the flat / occupants of the flat had use of the car park?