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PCC claiming to be able to charge me for parking in space granted to me via leasehold

h2g2
h2g2 Posts: 23
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Apologies for the long post. I have tried to keep it strictly to necessary information, although I don't want to cut out anything that may be relevant either and so erred on the side of "keep it in". I have also tried to organise it to make it as easy to follow and find the relevant parts as possible.

Background


No charges have yet been issued to me, although other residents have complained about receiving charges despite displaying the issued permits. (Enforcement only started on January 8th, and my car has been in a garage being worked on for that time.)

However: I do want to get this resolved, ideally without having to defend an unfair charge in court, and the risk (however small) of a loss there. It would be better for all parties for this to be solved out of court, or - if a judge must rule on it - before I risk getting any parking charges issued to me.

Due to regular complaints from residents to the management company about unauthorized cars occupying their parking spaces (including, it seems, non-residents tailgating residents onto the estate and parking in any free space they can find) the management company seems to have decided to employ Parking Control Management Ltd (PCM) to enforce parking in the car park.

Instigating the PCC

All the residents received hand delivered letters with a permit to display, indicating which numbered bay we were entitled to, and a letter explaining that all cars must be parked wholly within a marked bay (although the bays are short and many medium sized cars have to overhang the front of the bay by ~1 inch - no-one has ever complained about that) and displaying a valid permit. It says photocopied, damaged or faded permits are not valid, and replacement permits cost £20 to issue. It says any breach of these terms will result in a £100 charge, with the usual terms and conditions.

These came accompanied with a letter from the management company saying they expected us to comply with this, and would not get involved in any disputes between the residents and PCM.

My current stance (which I am not 100% sure about)

However: I believe that my leasehold agreement grants me the unfettered right to park without a permit and that, were I to be charged, I would have primacy of contract. As far as I am aware an alteration on the leasehold would be required to allow permitting to be made a requirement under the given terms. What complicates this is that there is a term in the leasehold agreement requiring that I do not allow any easements or encroachments on the leasehold agreement, which includes the car park. I worry that by displaying the permit I could end up creating an easement by which I accept the terms PCM Ltd have laid out on me, including the requirement to pay whatever they decide to charge for a replacement permit (I imagine they will claim to be able to revise the cost of a replacement permit as and when they feel necessary).

I further believe that PCM are essentially offering the right to park in my space to anyone who can gain access for £100 per day. (Possibly a good deal if you have a very valuable car and would rather park it somewhere gated and away from the eyes of potential thieves - someone with a McLaren F1 did, in fact, sneak in and leave their car in someone's bay for a week rather than pay parking at the nearby train station with its publicly accessible car park). However, I have not consented to this offer and if I am charged I believe I would have had no consideration, as the right to park was already afforded to me by the leasehold agreement.

What I have done so far

I have written to the freeholder, as required under clause 3.7, to tell them I believe this is an attempted encroachment. So far I have not heard back yet, although they did receive my letter less than a week ago, so I would not have expected to hear back yet.

I also wrote to the management company saying:

 > "The title to my property includes my parking space, which I therefore have the right to quiet enjoyment of, notwithstanding any restrictions placed in the leasehold. As far as I can tell the leasehold agreement only requires that I use the parking space to keep a car or motorbike with up-to-date road tax. Would you be able to point out which part of the leasehold allows a permitting system to be introduced?"

They responded:

>  "Your lease does allow you to quiet enjoyment of your parking space, but unfortunately a lot of residents aren’t allowed this, due to other residents and / or their visitors parking in their parking spaces and therefore introducing parking control was the only option to allow all owners the quiet enjoyment of their space as per the lease."

which, as far as I can tell, indicates they don't understand what "quiet enjoyment" actually means and doesn't answer my question. I replied again making specific reference to clauses in the leasehold agreement that I believed they were in breach of and have yet to hear back.

I have made it clear as well that while I will display the permit as required that I do not believe it necessary and I am only doing it to avoid unnecessary trouble with PCM until the situation is resolved. And that I do intend to stop displaying it if it cannot be established that I am required to, due to the clause requiring me not to allow an easement to be created.

Going forward
This means I would like to find a way forward to find out either that a) the management company / freeholder does, in fact have the right to impose permitting or b) that I can reliably insist that they stop.

Some supporting material:

SUMMARY:
A & B are extracts from the letter from PCM explaining the rules of the parking.
C-G: Extracts from the leasehold agreement.
C: Definitions of terms
D: Tenants Covenants, including restrictions on the parking space, a requirement not to allow any encroachment nor easement on the parking space, and to comply with reasonable regulations set out by the landlord and management company.
E: Regulations to be observed by the Tenant, requiring me to comply with any "access requirements" set out by the management company.
F: Landlord's Covenants, outlining the right to quiet enjoyment.
G: The management company's rights to employ staff, and to regulate.
H-I: The installed signage (which may or may not be relevant.)

A: Letter from PCM explaining the permitting requirements:


B: Letter from PCM with advice about signage and charges.


C: Leasehold fragment - definitions of car park space, common parts, demised premises, and estate:



D: Relevant Tenants Covenants from the Leasehold agreement, including restrictions on the parking space:




E: From the Fourth Schedule: Regulations to be observed by the Tenant


F: From the Landlord's Covenants (which also applies to the Management Company):


G: From Schedule 3, the Management Company covenants with the Tenant and observe and perform:



H: Sign installed at entrance


I: Sign installed within car park:

«13

Comments

  • KeithP
    KeithP Posts: 37,073
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    Curious term... what's a 'Virtual Visitor'?...


  • Fruitcake
    Fruitcake Posts: 57,967
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    edited 16 January at 7:47PM
    Your lease grants you primacy of contract over an unregulated company that is not a party to your lease.

    You should also read you lease in conjunction with Section 37 of the Landlord and Tenant Act 1987. A lease cannot be varied unless a ballot of all landlords and tenants has been carried out, AND at least 75% of landlords and tenants in favour of the change AND no more that 10% against where there are nine leases or more.
    for less than nine leases, all but one landlord or tenant must be in favour.

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

    You should be asking whoever introduced the infestation when (not if) this ballot was carried out, and what was the result, because without it and without the requisite majority, a variation of your lease is unlawful.

    You should get together with other tenants and fight this. Many people in your situation form a Facebook fightback group.

    Personally I wouldn't be waiting for confirmation about anything. I would state to whoever introduced the scheme that you do not agree to it and hereby withdraw any implied right of access to your demised parking space and any vehicle parked upon it, and you require them and their agents to cease and desist all parking enforcement on your demised space and your vehicles.
    Warn them that if they do not, they will be leaving themselves open for litigation every time their agent unlawfully obtains and processes your personal data.

    You should send similar to PCM.

    Warn everyone that PCM will issue charges to residents and visitors, and they will take people to court. They also risk being blacklisted by delivery companies, (both goods and food deliveries), medical staff, taxis/ride share etcetera.

    PS

    Tell whoever employed the PPC that PCM's signs include a prohibited premium rate 'phone number and a prohibited 'phone admin fee, so again, as principal, they are leaving themselves and their agents open to litigation.

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  • h2g2
    h2g2 Posts: 23
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    KeithP said:
    Curious term... what's a 'Virtual Visitor'?...
    It's possible (according to PCM's scheme) to authorise a visitor to park either via a scratch-off permit, or by using an app where their car details are registered. In the latter case it is called a "Virtual Visitor Parking Session" and the car is a "virtual visitor".

    Fruitcake said:

    You should get together with other tenants and fight this. Many people in your situation form a Facebook fightback group.
    Thank you for the advice. I will send the messages you recommend.

    I did try to rally the tenants facebook group, but the prevailing attitude is still "thank goodness I won't have anyone else parking in my spot anymore" and "just display your permit silly it's not hard". I think as more unfair charges arrive - at least two have complained about being ticketed despite a permit, and one that their permit never arrived and they still got a ticket - that attitude will change.
  • KeithP
    KeithP Posts: 37,073
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    h2g2 said:
    I did try to rally the tenants facebook group, but the prevailing attitude is still "thank goodness I won't have anyone else parking in my spot anymore" and "just display your permit silly it's not hard". I think as more unfair charges arrive - at least two have complained about being ticketed despite a permit, and one that their permit never arrived and they still got a ticket - that attitude will change.
    Perhaps you need to point out that those cars parked in resident's places were probably put there by the parking company whilst touting for business.
    It is not unheard of for parking companies to arouse the interest of residents by deliberately parking cars in wrong bays - cars that shouldn't even be in the car park.

    This of course generates complaints to the management company and just when the management company are tearing their hair out wondering what to do, up rocks the parking company with a solution.

    Lo an behold, solution implemented. Lots of happy residents - for now anyway.

    Then of course the parking company wants some income.
    Back come the rogue cars forcing people to park in the wrong bays.
    Tickets get issued. Parking company happy. Residents beginning to become unhappy, but still most are happy.

    That's where you are now - residents fighting amongst themselves - some supporting the parking scheme, others not.
  • Coupon-mad
    Coupon-mad Posts: 129,237
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    edited 16 January at 11:42PM
    Due to regular complaints from residents to the management company about unauthorized cars occupying their parking spaces (including, it seems, non-residents tailgating residents onto the estate and parking in any free space they can find) 
    That didn't actually happen, unless the ex-clampers staged it to get the contract, IMHO.  Has been known.

    And PCM were on Watchdog:

    http://parking-prankster.blogspot.com/2015/05/is-it-pcm-uk-who-make-up-stuff-all-time.html?m=1

    You do not want PCM in your estate; this is unsolicited interference with your lease.

    Infestation by an aggressive ex-wheelclamper soon gets known locally, and can bring down property values and decrease the likelihood of getting tenants, for those leaseholders who let out their flats.

    It is a blight on property & on peace of mind and leaseholders don't have to accept it.

    STOP THEM NOW!  OPT YOUR BAYS OUT AND GET THE LEASEHOLDERS TOGETHER.

    Get together with the other leaseholders (go and knock on doors this week) and together, send the Managing agents a suitable version of the letter shown here (an oldie but a goodie):

    https://forums.moneysavingexpert.com/discussion/5997200/pcm-company-introduced/p1

    Let us know how that goes down.

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  • h2g2
    h2g2 Posts: 23
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    edited 19 January at 1:40PM
    How is the wording on this letter I will send to the freeholder & management agent? It is a variation of the one suggested here: https://forums.moneysavingexpert.com/discussion/5997200/pcm-company-introduced/p3

    To whom it may concern,

    Re: [My address & parking space] - FORMAL COMPLAINT REJECTING PERMIT SCHEME

    I, the leaseholder of leasehold [my leasehold reference], now formally object to any 'parking management' in the strongest terms and unequivocally reject the unsolicited permits foisted upon myself. I will not be bound by any terms unlawfully imposed upon me.

    The background:

    On 7th December the Management Agent sent an e-mail stating they were introducing parking control and had appointed Parking Control Management Ltd (PCM) to manage the parking. PCM put up signs and distributed letters stating that parking enforcement would begin on the 8th January 2024, one month from then. One permit was issued per parking space, notwithstanding complaints I have seen on the residents’ facebook group about permits not being sent. This seems to have been a knee-jerk reaction to complaints of parking spaces being occupied by unauthorized vehicles.

    You are already aware from earlier correspondence with the Management Company (29th December 2023 & 14th January 2024) that concerns about infringement of the lease existed, as well as about the quality and reputation of the parking company appointed to act as your agents.

    Neither the residents, nor a majority of the leaseholders, were consulted when you contracted with an external company regarding a parking regime, and due to your significant oversight you must cease and desist with the parking enforcement scheme.

    The legal position - derogation from grant and breach of Landlord & Tenant Act 1987

    Your actions now in imposing an unwanted private nuisance of ex-clamping-!!!!!!-mercenary-traffic-wardens PCM are unlawful and a derogation from grant.

    As such, I require PCM to be removed from the estate and their signs offering the right to park on my demised premises are taken down immediately.  If a contract has been signed with PCM, that is your issue to rescind and as I am not party to that contract, I will not be liable for any wasted costs due to your actions.

    Should I be required to seek an injunction to stop PCM or to defend against any unlawfully issued parking charge notices I will require the costs of such action from you, the Managing Agent. I sincerely hope the matter can be resolved amicably without legal action or related costs.

    You are advised that as a Managing Agent or a freeholder you cannot take unilateral steps to change or remove such a fundamental amenity as parking. Further, you may not impose (or allow an agent to impose) 'parking charges' not covered within the leases without proper consensus as described in the Landlord & Tenant Act 1987.

    My position is that I have the benefit of rights allowing a car to be parked on my demised premises and this benefit cannot be removed, charged for, extinguished, adversely changed with onerous terms, nor resident access to spaces reduced.

    Authorities which support my position include:

    (i) Kettel v Bloomfold [2012] EWHC 1422 (Ch)
    (ii) Saeed v Plustrade Limited [2001] EWCA CIV 201
    (iii) Pace v Mr N C6GF14F0 [2016]
    (iv) Link Parking v Ms P C7GF50J7 [2016]
    (v) the Winchester County court case of Roger Davey v UKPC [2013] where, in an Order by consent, the parking firm gave undertakings to the Court not to enter the Claimant's land and not to place any parking charge notices on the cars, and the Court ordered damages for trespass in a total of £150.00 and costs in the sum of £1280.26 which included the cost an injunction obtained by Mr Davey.

    I respectfully suggest you need to seek legal advice and you must not allow your parking agents - or any parking firm - to continue to impose any terms upon me or other residents in the meantime.

    As stated in Section 37 of the Landlord and Tenant Act 1987, in order to establish a right to impose unilateral terms which vary the terms of the lease, you must have such variation approved by at least 75% of the leaseholders with no more than 10% objecting, or in the case of nine or less leaseholders, all but one must agree.

    No such variation to the lease was ever sought, nor would I approve such a variation.

    Anticipating a response with wording from the Head Lease, I advise you that a fundamental restriction to the parking amenity and the inflicting a scheme that could charge residents for the most minor error does not, under any interpretation, constitute “in the general interest of residents and good estate management” nor “good management and conduct of the estate”. Nor does financially incentivising a firm to issue those charges upon me or the other residents even if a trustworthy firm were introduced, let alone one that appeared on BBC’s Watchdog (Season 35, Episode 4) in which they admitted to making things up during appeals.

    I therefore demand that PCM is removed, the scheme is stopped and the signs removed. If this is not put into motion in the next 7 days, I will be forced to take legal action and/or apply for an injunction and pass the costs to the Managing Agent, the freeholder, and PCM as necessary, to prevent this private nuisance.

    Yours sincerely,



    [My real name]

    ---

    And to PCM:

    To whom it may concern,

    RE: Space [my space number] at [estate address],

    I note you have erected signs claiming to authorise parking in the identified space to anyone who follows your terms & conditions, or who is willing to pay a parking charge, and also issued an unwanted and irrelevant paper claiming to be a permit.

    The identified space is my demised premises (see leasehold [my leasehold number] and title [my title number]) and your signs cannot override any rights granted to me in the lease, nor impose any additional terms, nor can you authorise any others to park in my space.

    I require you to remove any signage claiming to authorise parking on my demised premises and to leave unmolested any vehicle on that space. Should you attempt to issue an unlawful charge to any car parked in, or mostly in, that space I shall seek compensation for trespass from you.

    Please also advise me on the best way to dispose of the so-called permit in an environmentally friendly manner - it is unclear whether the embossing on it makes it unsuitable for paper recycling.

    Authorities which support my position include:

    (i) Kettel v Bloomfold [2012] EWHC 1422 (Ch)
    (ii) Saeed v Plustrade Limited [2001] EWCA CIV 201
    (iii) Pace v Mr N C6GF14F0 [2016]
    (iv) Link Parking v Ms P C7GF50J7 [2016]
    (v) the Winchester County court case of Roger Davey v UKPC [2013] where, in an Order by consent, the parking firm gave undertakings to the Court not to enter the Claimant's land and not to place any parking charge notices on the cars, and the Court ordered damages for trespass in a total of £150.00 and costs in the sum of £1280.26 which included the cost an injunction obtained by Mr Davey.

    Yours sincerely,


    [My name]

  • Le_Kirk
    Le_Kirk Posts: 21,929
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    edited 19 January at 5:19PM
    I would try to find a named person to write to, it will have more impact.  I would also require PCM to make good any holes they have drilled into walls or similar!
  • h2g2
    h2g2 Posts: 23
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    edited 19 January at 9:09PM
    Thanks.

    The walls in question are owned by the freeholder so I don't think I would have any standing to insist PCM do it. I could probably ask that the landowner has it done one way or another, and suggest they recover the cost from PCM. But if they authorised PCM to put up the signs I very much doubt I could compel PCM.

    I will try to find a named person to write to. Unfortunately the freeholder is a holding company who have never responded to anything I've ever written to them about. I did manage to talk to someone in a call centre once but that was the only human I'm aware of interacting with there. I should, however, be able to find a named person at the management company.

    I have, however, edited the 2nd to last paragraph. I removed the reference to BBC's Watchdog on the grounds that if they decided to counter-attack with an accusation of libel I wouldn't want to defend it unless I could produce a copy of the episode in question, and also the inevitable "that episode was 8-9 years ago now; we're better than that now". Instead I used the opportunity to point out (as @Fruitcake noted) that they are already trying to fleece us with the prohibited premium rate phone number and prohibited admin fee for using it.

    The penultimate paragraph now reads:

    "Anticipating a response with wording from the Head Lease, I advise you that a fundamental restriction to the parking amenity and the inflicting a scheme that could charge residents for the most minor error does not, under any interpretation, constitute “in the general interest of residents and good estate management” nor “good management and conduct of the estate”. Nor does financially incentivising a firm to issue those charges upon me or the other residents even if such a firm was trustworthy. PCM, however, instead offer on their signage a premium rate number in order to pay by phone and charge an administration fee to do so. These would appear to be in breach The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 article 41 and also The Consumer Rights (Payment Surcharges) Regulations 2012 Regulation 6A respectively. If these signs from PCM do, indeed, breach those regulations it is a very poor reflection on how trustworthy they are, and inflicting a firm with such brazen disregard for the regulations is unconscionable."
  • Half_way
    Half_way Posts: 7,012
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    If i haven't missed it, then you need to hammer home that the principal is jointly and severally liable for the actions of its agents, in this case the management company that allowed/gave permission for the parking company (PCM) to operate on the land in question, such liability could include but not be limited to the Management company being liable for all costs associated in residents dealing with this, including time and other expenses

    any breaches of GDPR - the parking company as agents of the management company  will have no just cause in obtaining and processing personal data with regards to issuing and any subsequent pursuing of parking charge notices - GDPR also introduces into data protection legislation personal liability.

    PCM are an unregulated parking company, and it is unreasonable to impose an un regulated parking company on residents, neither the British Parking Association, or the IPC ( international parking community) are regulatory authorities.
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • Coupon-mad
    Coupon-mad Posts: 129,237
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    I'd divide that long penultimate paragraph where the sentence starts 'Nor...'
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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