PCC in leasehold space [court claim started against MC & PPC]

Coupon-mad

h2g2 said:

Did you ever get a PCN?
You are the Claimant?

I personally didn't - when I complained to PCM they opted out my space and have thus far stuck to it.

However, I am joined in this action by a few neighbours (including one subtenant who has an AST with a leaseholder - an interesting element, IMO) who have variously got PCNs and some paid them. We sadly don't have anyone who got a NTK, but I'm hoping someone will join in still who has so we can establish how those should be handled. I'm claiming that my contract has been breached and the situation causes my property to be devalued as a result, although only asking for an injunction and a small amount of compensation (plus my costs, obviously) as a remedy.

Who are you suing? PCM? The RTM group?

That is a conversation to be had with JY, I think. I've listed possible causes of action as:

• Freeholder: breach of contract and very maybe fraud (depending on their involvement)
• RTM Company: breach of contract and breach of articles of incorporation
• Managing agent: tortious interference, mishandling of data under DPA and I think probably fraud (their director has almost certainly been dishonest with me in handling the case and done so in order to allow others to profit unjustly at my expense)
• PCM Ltd: mishandling data, tortious interference, trespass, and maybe fraud as well.

The tortious interference allegations I want to make are down to the fact that all parties knew about the lease agreements (or, if they didn't, were deliberately ignorant to them) and chose to act in a way that caused the contract to be broken in order to cause damages to the leaseholders (a party to the contract). Also the way the leasehold agreement is written the managing agent and freeholder are required to be aware of any tenancy agreements underneath them, so subtenants of leaseholders could prevail based on tortious interference with their tenancy agreement.

The fraud allegations I need to talk to JY about once he's reviewed the bundle I sent him. But the point is that everyone's pretended to have authorisation that does not and cannot exist, and continued to insist that authorisation exists after being shown proof it can't. Sometimes to the point of professional property managers telling me misleading things about what "part possession" or "quiet enjoyment" means - it is inconceivable that a vaguely competent professional in property management would not know what those terms mean.

Whether we focus on one of those or try to hit everyone is TBD. My preferred targets are the managing agent and PCM Ltd. The RTM Company could conceivably be forced to wind up, and I'd rather have an RTM Company I'm a member of with some control than have to set up a new one. Realistically I'm stuck with the freeholder whatever happens, so I don't want them to end up with a grudge against me. But if it works out so that they're liable to pay out to all the residents, but that the MA and PCM were found to have misbehaved to the point where the freeholder can recover all those costs from them it would hopefully make the freeholder more careful about upholding their covenants and also make it much easier to replace the MA given that the freeholder still has a majority of votes on the RTM Company.

This poster sued a PPC successfully, then also sued (and won against) a residential RTM company for DPA 2018 breaches:

https://forums.moneysavingexpert.com/discussion/6421843/i-sued-a-parking-company-and-won/p1

eddddy

h2g2 said:


Who are you suing? PCM? The RTM group?

That is a conversation to be had with JY, I think. I've listed possible causes of action as:

• Freeholder: breach of contract and very maybe fraud (depending on their involvement)
• RTM Company: breach of contract and breach of articles of incorporation
• Managing agent: tortious interference, mishandling of data under DPA and I think probably fraud (their director has almost certainly been dishonest with me in handling the case and done so in order to allow others to profit unjustly at my expense)
• PCM Ltd: mishandling data, tortious interference, trespass, and maybe fraud as well.

You probably need to check another angle...

It sounds like the set-up is something like this:

• There's a freeholder
• There's an RTM limited company
• The Managing Agent is an agent acting under instructions from the RTM company
• (Is PCM an agent/contractor acting under instructions from the Management Company? I don't know how their contracts are set up.)

Assuming that's the case...

• Does your lease allow the freeholder / RTM Company / Managing Agent to recover their legal costs from leaseholders through the Service Charge? (Some Leases do, some leases don't) 

• If the lease allows legal costs to be recovered through the Service Charge, that would include legal costs if the freeholder / RTM Company / Managing Agent lose the case

• So you might win your cases, have costs awarded in your favour, but you and your fellow leaseholders still end up paying those costs

Also...

• If the lease doesn't allow the RTM company to recover its legal costs from leaseholders via the Service Charge - typically, RTM companies have no assets and no money to pay those legal costs

• So the RTM company is likely to declare bankruptcy - and there will be no way to recover your costs

• Responsibility for managing the building would then revert back to whoever the lease says is responsible (which might be an undesirable, as the RTM company was formed to prevent that)

Also... this is an area I know less about, but might be worth checking up on...

• The Managing Agent is (probably) an agent following instructions from the RTM company, and PCM might argue that they are an agent following instructions from either the Managing Agent or the RTM company

• So it might be argued that the RTM company is liable for some/all actions of the Managing Agent (and perhaps even the actions of PCM)

In hugely simplified terms, if the RTM company instructed the Managing Agent (and PCM) to do things, and they simply followed instructions, the 'complaint' might be against the RTM company rather than the Managing Agent / PCM.

h2g2

> Does your lease allow the freeholder / RTM Company / Managing Agent to recover their legal costs from leaseholders through the Service Charge? (Some Leases do, some leases don't) 

No. Costs have to be "properly incurred at the First Tier Tribunal" and I don't think they could convince the First-Tier Tribunal that cost they incurred losing a case, where a county court judge already awarded costs were properly incurred. There are also some very specific costs they can recover, but they don't apply in this case. There is even a clause stating circumstances where they can be held liable for something, which I'm meeting.

In any case, any court application I make will include a request for a 20C declaration from the court, which would forbid them from recovering the costs via the service charge regardless of what the leasehold agreement might say.

> Is PCM an agent/contractor acting under instructions from the Management Company? I don't know how their contracts are set up.

Apparently the managing agent are their client, not the RTM Company.

The problem with holding the RTM Company liable is that they have a very limited liability. Their "limited liability" is £1 (one pound - no type). I believe that means actual misconduct or malice on their part would have to be proven to recover the money from their directors. Plus the RTM Company being forced to declare bankruptcy and being wound up isn't really a good outcome. I'd rather have an RTM Company which I can have a membership of and influence than no RTM Company at all.

h2g2

So interesting update:

PCM have given me a PCN despite agreeing to opt-out my space.

I will of course ask Contestor Legal to add it to the pile of complaints we're making against PCM and the MA.

I'm not sure what the best option is. So far as I can see my ways forward are:

1. Do not otherwise engage. Let them send NtK. Trust that our process will win out before theirs does.
2. Wait for NtK and appeal as keeper. I'm not sure what I gain here unless the NtK isn't POFA compliant, but my primary defense would be that I am the legal occupier of the relevant land, and therefore the "owner or occupier" as defined by POFA and the "landowner" as defined in their code of practice.
3. Appeal now as driver, asserting that I am the legal occupier of the land in question and that they, furthermore, agreed to opt-out my space when I made this case to them.
4. Wait another week till I have a chance to chat to JY about it. (He's been spinning many many plates lately so hasn't had much time to work on the case, apparently.)

Coupon-mad

I think I'd speak to JY but failing that, if he's busy I'd do option 3 and tell them to cease and desist!

LDast

Hopefully, JY will advise on a counterclaim for damages for breach of your GDPR because the operator is obtaining your DVLA data unlawfully.

Coupon-mad

Actually yes: DON'T appeal against the windscreen PCN. Wait for the NTK in October.

Grizebeck

You could quite easily issue a claim for trespass 

h2g2

JY's advice was to appeal as driver making my position as landowner clear.

I'm going to send something like this - I've asked JY if he can check that I'm not prejudicing anything but he's really busy at the moment, it seems:

1. I appeal as the driver.

2. I hold leasehold title [REDACTED], which grants me the long leasehold and exclusive possession on the relevant land on which the car was parked, including the right to store a private motorcar on that land. (Para 3.33 of the attached leasehold agreement).

3. Being issued this charge is an interference with my enjoyment of this grant, and as such cannot be authorised by anyone other than myself. It cannot be authorised by the holder of the head freehold, nor the RTM Company, nor their property management agent, nor any parking company appointed by any of them. In Link vs Mrs Parkinson (2016) [C7GF50J7] (attached) DDJ Metcalf upheld this view, stating that a variation of the lease would be required to introduce any charges for use of the parking spaces.

4. I have made no such authorization.

5. This title makes me the "owner or occupier" of the relevant land as understood by the Protection of Freedoms Act 2012 Schedule 4 (POFA) para 2(1); the "landowner" as defined in the IPC Code of Practice v9 (IPCCoP) (p.7), and in para 2.17 of the incoming Private Parking Sector Single Code of Practice (PPSSCoP), and the "legal occupier" on p.49 of the same.

6. As such, your clients, regardless of who they are, cannot grant you permission to form contracts with drivers on the relevant land and you should not have entered into any arrangements with them (see para 23.1 of IPCCoP, or POFA).

7.  On 21st January 2024 I wrote to you asserting my rights regarding the land in question and requiring that you

remove signage offering the right to park on my demised land since they were erected without consent of me, the landowner. A copy of the title I hold was sent to you on 7th February.

8. On 23rd January 2024 you replied (reference PGC0487) agreeing to opt out the relevant land from enforcement but refusing to remove signage offering the right to park, despite my lack of consent to any such offer being made.

9. Placing the PCN on my car and the photographs taken of the interior constitute trespass against my property (R Davey vs UKPC 2013 supports this).

10. Since you already had proof of my title to the relevant land and also agreed not to issue any PCNs on this land I will be seeking redress for this trespass in addition to the cancellation of the PCN.

Grizebeck

Wait until you get the ntk