Private parking charge for SORN car in own space

dadsma

My pal lives in a shared ownership apartment block with a numbered designated parking space specified in the lease. He has received a £100 Parking Charge Notice to Keeper from a private parking company because the car is currently registered with the dvla with a Statutory Off Road Notice (SORN) which the PPC says contravenes the parking t&c’s.

Signs state “Parking Enforcement in Operation”, that it is privately owned land and there is a contractual agreement to Enter/Park. Conditions apply to all users. One reads “All vehicles must have a current valid road tax, MOT and insurance. SORN vehicles are not permitted on this private land”.

It says if you fail to comply you agree to pay a £100 parking charge reduced to £60 if paid within 14 days. The PPC is a BPA member.

The lease says the leaseholder has  “An exclusive right to use the parking space (if any) for the sole purpose of the parking of one private motor car with all rights of access to and egress therefrom subject to complying with the provisions of this Lease and all written regulations which the Landlord may from time to time make and publish in connection with the use of the parking space and the Estate generally.”

Does the reference to the leaseholder complying with “ all written regulations which the Landlord may from time to time make and publish in connection with the use of the parking space” mean that the landlord has an unfettered right to appoint a ppc and impose t&c’s without the agreement of leaseholders?  My friend says he has never agreed to any parking scheme.

I have already advised him to do as the newbies thread advises - complain to the landowner and the management company who appointed the PPC and ask them to get the charge cancelled.

May I ask the experts on here, please, are there specific relevant legal points to be made to the management company/landlord and also for the challenge to the PPC regarding the validity of their charge.

Thank you all

Emmia

Where exactly is the parking space? Might it be somewhere that could be determined as 'on the road'?

If so, I'm not sure the vehicle could be SORN (Statutory OFF ROAD Notification) you can't for example SORN a vehicle parked on the road outside a house even if it's a marked bay - it needs to be on a driveway or in a garage.

Fruitcake

The lease has primacy of contract over anything an unregulated private parking company that was not a party to the lease has to say. What your lease doesn't say is equally important.

A lease may only be varied following a ballot of all Landlords and Tenants as per the Landlord and Tenant Act 1987, Part IV, Section 37, and only with a majority of at least 75%, and no more than 10% of votes against. 

If there is no clause in your lease/property rental agreement saying a SORNed vehicle cannot be parked in your demised space, and no ballot carried out in accordance with the above Act to amend your lease ever took place, then new terms cannot be imported into your lease, and certainly not by an unregulated company that is a stranger to your lease.
This is backed up by the the appeal case of Thornton v Shoe Lane Parking Ltd, which is a leading case of contract law. It provides a good example of the rule that a clause cannot be incorporated after a contract has been concluded, without reasonable notice before.

Half_way

all written regulations which the Landlord may from time to time make and publish in connection with the use of the parking space”

These mist be reasonable and the imposition of an un regualted parking company is not reasonable

Emmia said:

Where exactly is the parking space? Might it be somewhere that could be determined as 'on the road'?

If so, I'm not sure the vehicle could be SORN (Statutory OFF ROAD Notification) you can't for example SORN a vehicle parked on the road outside a house even if it's a marked bay - it needs to be on a driveway or in a garage.

If it is an on road parking bay, on the public highway mainted at the public expense, and/or an area that is under the TRO such as council owned car park, then a private pakring company can not issue parking charge notices there.

The advice given on this forum works better when its not subject to chinesse whispers and the freind of Dadsma will be better off posting here directly, unless there is a good reason why they can not , such as language issues, or diffculty reading /using computers etc.

MY thoughts are that  it would appear that ithe pakring company has no rights to issue pakring charge notices as it appears tha this space is part of the property , no more than they would have rights to issue a charge for pakring a blue car in the bay when they only want red or grey cars parked there, or not using white toilet paper in the lavatory

If this is the case then the management agents need to be hit hard, they are responsible for the actions of their agents, and if they have imposed this on land they can not then there could be a Data protection issue here as their agents will not have just cause to process data - whoever took on the parking company are jointly and severally liable for the actions of their agents, ie the parking company.

dadsma

Emmia said:

Where exactly is the parking space? Might it be somewhere that could be determined as 'on the road'? 

It is a numbered parking bay located on private land that is part of a private development.

Half_way

Threres often a clause in lease/rental agreements etc that the vehicle should be Taxed and MOT'd However its highly unlikely that this also includes a clause that you will pay a third party stranger to the lease/rental/whatever a fee of £100 .

Again it would be ideal if the person who is affected by this can post on here, as while it may seem pedantic the words used in dealing with this are important .

More information is needed in order to give any meaningful advice such as

The exact wording in full that gives the right to use that area, plus is the area ( ie bay) outlined on a map/plan?

Was a ballot carried out prior to the introduction of a parking company

My friend says he has never agreed to any parking scheme.

OK, has your friend complained to anyone about this scheme or said nothing - in the grand scheme of things it doesnt matter if nothing was said but it will give additional clout to any complaint
 Has your friend been displaying a permit - again if its their space then this is a moot point as logically you dont need a permit to permit you to do something that you already have the rights to do so to use a bit of logic any displaying of such a permit would be out of a courtesy and not an obligation.

Has your friend ever paid a parking charge notice for that space? if so then steps must be taken to protest about this and to try and get a refund form the managemetn company/whoever took the parking company on

dadsma

I encouraged my friend to take over this topic but at the moment they said they are happier if I continue with it so I am unsure what to do as I am concerned  time will pass and miss out gathering sufficient information for a detailed POPLA appeal  I will ensure that all responses to your posts are obtained from the leaseholder/Keeper directly so that the “chinese whispers” scenario doesn’t arise.  Come to think of it, that’s how I ended up with a divorce 20 years ago, but that’s a topic for a different forum!

dadsma

Meanwhile I will be sent a copy of the full lease. A complaint is being prepared for the management company and PPC and I will post as soon as responses are received. Thank you all again for your invaluable help which helps demystify a complex topic.

dadsma

A second identical NTK has been received a week later than the first. I have drafted a formal complaint to the landlord/management company, copied as PCN challenges to the parking company. Much of it is taken from suggestions found in forum posts by Fruitcake - thank you. Please may I have any suggestions for improvement.

DRAFT

“Dear sirs,

Formal Complaint and challenge to Pcn’s

I recently received the following Parking Charge Notices to Keeper (PCN, NTK) xxx and xxx from private parking company (PPC) xxx which I understand was appointed by you to “manage and regulate” the car park.

The NTK’s state that a £100 charge was incurred for a breach of car park terms and conditions of use, specifically that my vehicle had no valid MOT or insurance. The NTK’s explain that liability for the alleged breach was brought to the attention of the driver by signage in and around the site, one condition of parking being that all vehicles must have a valid current road tax, MOT and insurance.

I have taken advice on this matter and challenge the validity of the PCN’s as follows:

I refer you to the Residential Lease in place between your company and myself, dated xxx in respect of apartment no. xxx.

I understand that this lease provides me with primacy of contract over an unregulated PPC who are not a party to the lease. There are no provisions in the lease requiring my motor vehicle to have valid Tax, MOT or insurance. Neither does it specify any financial penalty or charge for failing to have them.

The lease provides that I have an exclusive right to use the parking space for the sole purpose of the parking of one private motor car with all rights of access and egress, subject to complying with the provisions of the Lease and all written regulations which the Landlord may from time to time make and publish in connection with the use of the parking space and the Estate generally.  The space is designated no. xxx and shown on the lease plan edged in red. 

May I refer you to Section 37 of the Landlord and Tenant Act 1987. This specifies that 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 vote in favour of the change AND no more that 10% against where there are nine leases or more.

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

Please will you confirm when the ballot was carried out, and the result. I am advised that without it and without the requisite majority, a variation of my lease is unlawful.

Furthermore, any variation of the lease must be reasonable and the imposition by you of an unregulated parking company to levy financial penalties upon my quiet enjoyment of my designated parking space is not reasonable. Neither the British Parking Association, or the IPC ( international parking community) are regulatory authorities. 

I also point out that the principal responsible for entering into an unlawful contract with a private parking company would be jointly and severally liable for the actions of its agents, in this case the management company that allowed/gave permission for the parking company 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.

Kindly note that I do not agree to the appointment of any third party to manage or regulate my use of the car park and hereby withdraw any implied right of access to my demised parking space and any vehicle I allow to be parked upon it.  I herby require you and your agents to cease and desist all parking enforcement on my demised space and my vehicle.

I am further advised that if you do not cease you will be leaving yourselves open for litigation every time your agent unlawfully obtains and processes my personal data as that is a breach of GDPR - the parking company as your agent 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.

In conclusion, I understand that the NTK’s and their £100 demands have no lawful purpose. Accordingly in the first instance I expect you to ensure the notices are cancelled without delay and I look forward to your helpful response.”

Half_way

Drop the abreviation PPC and replace with Private Parking Company in the complaint

Fruitcake

As above, do the same where you have used other abbreviations. Standard convention is to use the full wording followed by the abbreviation in brackets the first time it is used, and then just the abbreviation thereafter.
For example, British Parking Association (BPA) the first time, then just BPA afterwards.

I would also add DPA (Data Protection Act wherever you mention GDPR.