PCM Parking Fine in my own space AGAIN

ljs_1985

Hi, I am a leaseholder on a flat which was sold with an allocated parking bay and no parking restrictions/management at the time of purchase.

In 2015 i got a letter from PCM (Parking Control Management Ltd) to say that they had been appointed by the Freeholder (Adriatic Land)/Management company (Gateway) to implement parking restrictions, they gave me a permit for my space and put signs up around the car park.

I challenged it with the Gateway and the lead of the residents association who said this was a positive and had been done to stop students from the nearby college parking in our spaces. 

The permit is a flimsy bit of paper and had already totally faded so there was nothing written on it, it then disintegrated with condensation in the window on Sun 9th at 12:45 so i binned it and contacted PCM via their online contact form to request a new one be sent. I have no evidence that i made this contact other than a screenshot of the website saying 'thanks your message has been sent'. At 20:37 on Sun 9th i received a parking fine for not displaying a permit which i have appealed however i know that will be rejected as this has happened before when the permit blew out of site and they wouldn't accept the appeal. 

I then found an email address for the permits team at PCM so emailed them on Mon 8th to tell them i'd used the web form but had no reply, and now had a fine.They have replied saying they haven't received a web form query but given me  a link to buy a new permit so my first issue is why should i have to pay £15 for a permit to park in my own space? Surely they should replace that for free? I'm aware that arguing over £15 is petty, but I get mugged off left right and centre by Gateway and now PCM and i'm just so frustrated and upset. They also said they have no dealing with the parking fine side of things so can't communicate to them that i had requested a new permit, and can't cancel the fine.

The more pressing issue is this fine which is for £100. Can someone please help me in very simple terms understand what my rights are, and what i should/can do?

I've looked at my lease etc and can see the following mentions of parking

• In the interpretation and definition section at the start of the lease is says "Allocated parking space" means the parking space numbered 14 and shown edged green on the plan and being one of the car parking spaces or such other parking space as the landlord may allocated from time to time if it becomes reasonably necessary to do so

• Schedule four : tenant's covenants with the management company, the landlord and other owners

16. Not to park or permit and vehicles of any kind on any part of the estate Communal areas or the car parking spaces other than on the allocated space.
17. Not to use the allocated parking space otherwise than for the parking of a single private motor vehicle or motor cycle which does not exceed 35 cwt. gross laden weight and which should be in a roadworthy condition, taxed and insured.
18. Not to park on the allocated parking space or on any part of the estate any commercial vehicle other than a light delivery van at reasonable times of the day fir so long as may reasonably be necessary for the purpose of delivering goods to and collecting goods from the property or carrying out repairs maintenance decoration or  small building works to the property such vehicle to be parked on the allocated parking space.


Schedule nine : rights granted to the tenant
5. Subject to the tenant paying the part C proportion of the tenants proportion the right to park a single private motor vehicle on the allocated parking space or such other space as may be allocated in place thereof by the landlord for the parking of a private motor vehicle or motor cycle which complies with the restrictions set out in paragraphs 17 and 18 of schedule four subject to any easement or rights granted or to be granted over or under the same to any authority.

Schedule eleven : The estate service charge costs.
Services to be provided and obligations to be discharged by the management company
Part C "The parking costs"
1. To maintain renew replace and keep in good and substantial repair and condition the car parking spaces
2. The repair and replacement from time to time and wherever necessary of the pipes wires cables stand pipes and all other types of service installations and related apparatus for the supply of gas electricity water and other services to the car parking spaces
3. such lighting of the car parking spaces as the management company shall think fit
4. Keeping the car parking spaces generally in a neat and tidy condition
5. The cost of providing a supply of water and/or electricity to the car parking spaces
6. The cost of maintaining a reserve fund to meet the costs set out in this Part C of schedule 11



I have also checked the title deeds doc i have and this only outlines my flat, not the parking space.

I really don't want to pay the fine, but am scared at the idea of having bailiffs sent to me, or being faced with an increased fine and court unless i'm absolutely sure I am in the right.

Any guidance on what to do would be very much appreciated.

Fruitcake

It is not a fine.

Your leasehold agreement trumps anything an unregulated private parking company has to say. Was a ballot of all landlords and tenants carried out in accordance with The Landlord and Tenant Act 1987, Part IV, Section 37 before the parking regime was introduced? If so, were the majority requirements met to change your lease?

You should ask the managing agent when this ballot took place, and what was the result, because it is a legal requirement and your lease cannot be changed without a ballot in favour being carried out.

You should also tell the MA and the PPC that you do not agree to be a party to any leasehold terms not already in your lease and not implemented as a result of a ballot in accordance with the above act. To be specific, you refuse to join a parking permit scheme. You already have a right to park granted by your lease, so you are not being offered anything inn addition to your existing rights. Since there is no offer, there can be no consideration, no agreement, and therefore no contract can be formed with a third party.
You should also withdraw any right or implied right of access to your demised parking space and your vehicle without your prior express permission in writing.
You should not pay for a permit under any circumstances.

You should get your MP involved with this as well.

eddddy

Fruitcake said:

It is not a fine.

Your leasehold agreement trumps anything an unregulated private parking company has to say. Was a ballot of all landlords and tenants carried out in accordance with The Landlord and Tenant Act 1987, Part IV, Section 37 before the parking regime was introduced? If so, were the majority requirements met to change your lease?

You should ask the managing agent when this ballot took place, and what was the result, because it is a legal requirement and your lease cannot be changed without a ballot in favour being carried out.

FWIW, that's a slightly confusing description of how the law works.

Perhaps a more accurate way of presenting this is:


Does your lease allow the freeholder (or the management company) to charge a fee for parking, for failing to display a permit, and/or whatever?


Side note 1: Your lease comprises of the lease as it was originally granted, plus any lease variations that have been applied since then.

Side note 2: There are are number of ways in which your lease might have been varied. One way is by any leaseholder or freeholder making an application to a tribunal under The Landlord and Tenant Act 1987, Part IV, Section 37. Often (but not always), this requires 75% of the leaseholders to consent to the variation, and not more than 10% of the leaseholders to object to the variation. (The application would include a list of everyone who has been served notice, and a list of those consenting to the application, and those opposing the application.)

In this scenario, the tribunal will then decide whether to allow the lease variation.

If they do allow it, the solicitors will action the lease variation, and it will come into effect.


(So asking about a 'ballot' taking place is a bit confusing. It's really just a question of what the lease, including any actioned lease variations, says.)






But also, for example, here's a clause from a Haringey Council's standard lease:

[5] To observe the restrictions and regulations set out in the Fifth Schedule hereto or such other restrictions or regulations as the Corporation may from time to time make and publish 

And here's a clause from Southwark Council's standard lease:

(17) To observe and perform such other reasonable regulations or restrictions as may be made from time to time by the Council for the management of the building or of the estate

I suspect that other freeholders might have similar clauses in their leases. I don't know if any freeholders have ever tried to rely on these clauses to introduce regulations about parking charges etc, and/or whether they were successful at court/tribunal. Does anyone else know?

Coupon-mad

 I don't know if any freeholders have ever tried to rely on these clauses to introduce regulations about parking charges etc, and/or whether they were successful at court/tribunal. Does anyone else know?

Yes, and in cases we see, the Claimants have failed. Freeholders don't sue over this.  Parking firms do and they have not succeeded (small claims court - easy for a resident to defend).

Even if a MA can introduce 'regulations' these must be for the good of the residents and terms must be fair and reasonable.

@bargepole had a memorable case where the Judge said that it is not reasonable to expect residents to display a permit for a bay where they have a right, easement or grant to park, which would be like expecting all residents to rush indoors and have to display a Union Flag to show some third party surveillance firm that they are home!  Unreasonable.

Other cases include those mentioned here:

http://parking-prankster.blogspot.com/2016/11/residential-parking.html?m=1

@ljs_1985 send an email back to PCM and copy in the Managing Agents (TODAY) stating that you never agreed to this, it interferes with the rights under your lease and as a leaseholder with a legal right to peaceful enjoyment of your allocated bay you are hereby confirming that bay number xx is OPTED OUT of PCM's little 'outrageous scam' (MP's words here):

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

DO NOT PAY PCM A PENNY.

eddddy

Coupon-mad said:

 I don't know if any freeholders have ever tried to rely on these clauses to introduce regulations about parking charges etc, and/or whether they were successful at court/tribunal. Does anyone else know?

Yes, and in cases we see, the Claimants have failed. Freeholders don't sue over this.  Parking firms do and they have not succeeded (small claims court - easy for a resident to defend).

Thanks for the references. 

I'm not sure if you were annoyed by my post (or maybe annoyed by @Fruitcake's post). The main purpose of my post was to highlight that @Friutcake seems to have invented a concept of a ballot which would bind the OP in some way.

If some kind of ballot had been held, whatever the outcome, Section 37 of the Landlord and Tenant Act wouldn't make it binding on the OP. In simple terms, the OP can probably ignore any ballot like that. 

So I was trying to suggest that that the OP might be heading off down a blind alley, if they ask the Freeholder's Managing Agent about a ballot. 


Thanks again for your responses to my question about regulations in leases. 

Coupon-mad

I get that and wasn't annoyed by anyone on this thread except the 'scam' operated by PCM!

The leasehold owner needs to opt the bay out.  This is always possible where the motorist is a leaseholder with rights/grants, and he/she should have been told this (the option to opt out) when they first tried to inflict this rubbish on residents.

PCM are ex-clampers and were in Watchdog. No-one here ever pays them & their ilk.

ljs_1985

Hi all, I appealed my fine and it was rejected by PCM. I then referred it to the IAS who have also rejected my appeal. Can I have some advice on what to do next?

My appeals included multiple arguments

1) The fact that PCM were only instructed by my freeholder in order to ‘protect the residents from students in the neighbouring college using our spaces’. Fining a resident contradicts this totally.

2) They at no point made me aware I could opt out of the scheme, however after finding out I could do that it was so easy to do (one email), therefore had I known I could do that when they were originally instructed I would have done so. They didn’t make my options clear.

3) I contacted them before the fine was issued to say that my permit was damaged and not being displayed. That proves I had the best intentions to do the right thing and they’ve taken advantage of that.

4) I own my property and my space is listed in my deeds, plus my lease makes multiple mention of the fact that I have a right to park in my space, and that I pay a service charge which goes towards maintenance of the space.

I’m defintiely not paying it, so I assume I’ll now be threatened with bailiffs. Will they actually turn up at my house? I’m about to apply for a new mortgage in the next few months, will this affect it?

Also, should I ignore their letters or should I keep replying with the same refusal to pay and justification of why?

Any advice will be grately appreciated 

Fruitcake

It is not a fine.

Other than continuing complains, and getting other residents to do the same, you are now in ignore mode unless you get a Letter of/before Claim or a court claim.

Bailiffs won't turn up at your door unless you are taken to court, lose, and to fail to pay the judgment ordered by the court. 

Even if you did lose, as long as you paid the amount of the judgment within 30 days, no CCJ would be registered.

In any case, your case is so strong that I doubt a judge would find against you. 

Coupon-mad

Why did you try IAS? If was bound to lose.

You know from the 2nd post of the NEWBIES thread and the advice you've already had on-this thread to let it go to a court claim, and defend.

Has the resident opted the bay out and kicked up a stink with the MA yet?

ljs_1985

Coupon-mad said:

Why did you try IAS? If was bound to lose.

You know from the 2nd post of the NEWBIES thread and the advice you've already had on-this thread to let it go to a court claim, and defend.

Has the resident opted the bay out and kicked up a stink with the MA yet?

Hi, Yes i've now opted out which was done with a simple email and i guess that further strengthens my case? They didn't make residents aware that they could opt out, and had they done this i'd imagine the majority would have. I've had another letter today as my final warning before my case is handed to debt collectors, i'm really nervous about it but i'm going to take the advice from this post and now just ignore until i get taken to court. I see alot of people saying 'PCM have never taken anyone to court over an unpaid fine' but is that assumption or fact?

I contacted my managing agent who appointed them to 'protect residents' and they've said there's nothing they can do and if i wasn't displaying a permit then the fine stands. The IAS said they sympathise but they have to reject based on the fact there was no permit on display and can't take into consideration the other circumstances.

Coupon-mad

 I see a lot of people saying 'PCM have never taken anyone to court over an unpaid fine' but is that assumption or fact?

No that's not true and you did not read that rubbish here!  They DO sue people but we beat them.

Search the forum for PCM Gladstones claim, read a few threads and get ready!