Considering suing my freeholder for derogation from grant - any advice?

h2g2

Details are in the parking forum here: https://forums.moneysavingexpert.com/discussion/6499026/pcc-claiming-to-be-able-to-charge-me-for-parking-in-space-granted-to-me-via-leasehold but it's not so clearly something they deal with, so I thought I'd ask here as well.

The short version is that our leasehold grants us the right to park in a designated parking space, that is part of the demised premises in the leasehold agreement, and marked as part of the property on the land registry. However, the managing agent have appointed a private parking company and given them permission to issue charges to anyone parked without a permit for their designated spot, plus to charge for use of the visitor spots, plus to charge for permits.

I've had some correspondence with the freeholder and managing agents about this, but many residents have been getting charged for parking in their own spaces.

It's at the point where I plan to issue a letter before action and then, if they hold their current stance (which I suspect they will - the LBA will contain nothing I haven't already raised with them), to start court proceedings.

One thing I want to do, if I do take it to court, is to ask for compensation for breach of the leasehold agreement, but I'm not sure what is a reasonable amount. Part of me feels that the terms the parking company impose (and the freeholder supports) is £60/day minimum for failing to display a permit to their satisfaction. Given that we were also threatened with similar charges (£100+VAT then £50+VAT for every day thereafter) for drying clothes near the windows(!) I feel I could make a case that this is a reasonable amount, and ask for that amount, but it becomes a lot quite quickly and I don't want to potentially annoy the judge asking for an amount they consider unreasonable.

Does anyone have any prior experience with this kind of thing? What kind of compensation could usually be applied for?

DullGreyGuy

So how many "days" are you intending to claim for? The 36,500 assuming there is 100 years left on your lease? Which at £60/day you'd be claiming £2.2m and putting you into the High Court for Multi-Track and liable for the defendants full legal fees if you lose?

Introduction of parking charges was highly welcomed by the residents at the last place we lived in as it greatly reduced the non-resident parking that was a daily problems. In principle the managing agency could have just folded the issuing of permits into the annual management fee however there is a fairness that those that keep loosing them/switching cars etc and generating the extra work are the ones that pay for it rather than everyone else who buys one permit once and keeps it for years. 

propertyrental

Why would a leaseholder need to buy a permity to park in a space that was demised to them in their lease? Surely that's akin to saying you must buy a permit to sit in your living room?

The problem, presumaby, is where someone not authorised by the leaseholder parks in that space, but the leaseholder themselves, their froends and family should have unewncombered access to park there.

eddddy

h2g2 said:

One thing I want to do, if I do take it to court, is to ask for compensation for breach of the leasehold agreement, but I'm not sure what is a reasonable amount.

You would take them to court to claim your financial loss as a result of breaching the lease. Have you suffered a financial loss?

h2g2 said:

 Given that we were also threatened with similar charges (£100+VAT then £50+VAT for every day thereafter) for drying clothes near the windows(!) 

That sounds like a fine or penalty. Fines and penalties (by companies and individuals - including freeholders) are not enforceable in UK law. Has the freeholder ever tried to make somebody pay the amounts you mention?

(But freeholders can recover their reasonable costs of enforcing the lease.)

Similarly, you cannot enforce a fine or penalty on your freeholder - whether it's because they've breached the lease, or for any other reason.

eddddy

propertyrental said:

Why would a leaseholder need to buy a permity to park in a space that was demised to them in their lease? Surely that's akin to saying you must buy a permit to sit in your living room?

The problem, presumaby, is where someone not authorised by the leaseholder parks in that space, but the leaseholder themselves, their froends and family should have unewncombered access to park there.

I suspect there's a bigger picture. Perhaps something like this...

• Leaseholders complain to their management company "Random commuters, office workers and shoppers are parking in our parking spaces - so we can't park".

• The solution: A parking company will out up signs saying "Unauthorised drivers parking here will be charged £100". And the parking company put parking charge notices on unauthorised cars saying "You owe £100 for parking here"

• As a result, the random commuters, office workers and shoppers stop parking in the leaseholder's spaces - because they don't want to pay £100

• BUT... so the parking company know which cars belong to leaseholders, the leaseholders display a parking permit in their car - so the parking company know not to put a parking charge notice on their car

• And most leaseholders think "That's great - I have to pay £12 per year fee to renew my parking permit. But it means I can always park in my own space. That's a good solution."

h2g2

That's more or less it, except for two things:

Firstly, the freeholder has given the rights to decide who is authorised to park and who is not to a private company, when the leasehold agreement says the leaseholder has unfettered rights to park. The parking company presumably have requirements on who gets permits, but if you don't have the permit they issue you (even if it doesn't arrive until two weeks after they start issuing charges) you are not authorised to park in the space you own.

This is a clear derogation from the grant.

The second is that introducing a fee to park - even if it's disguised as a fee to renew a permit - on a space someone already has rights to park on is a further derogation from grant.

By the rules being imposed, if some private company who's only income from the site is to issue us charges decides that a) our permit is faded; b) our permit is not "clearly displayed"; c) we're even slightly over any line in the bay they can issue a charge to a resident in their own allowed spot. And they do issue them to residents in their own spaces. "But I own that spot" is not a defense as far as they're concerned.

The issue with commuters entering the car park without authorisation is a security issue. We have a security gate.

It's actually very unlikely any charge with a reasonable defense would stick anyway.

eddddy

h2g2 said:

Firstly, the freeholder has given the rights to decide who is authorised to park and who is not to a private company, when the leasehold agreement says the leaseholder has unfettered rights to park. The parking company presumably have requirements on who gets permits, but if you don't have the permit they issue you (even if it doesn't arrive until two weeks after they start issuing charges) you are not authorised to park in the space you own.

Obviously, if a leaseholder is issued with a parking charge notice for parking in their own space (for whatever reason), there should be a simple process to get the charge cancelled.

The freeholder (or their management company) should have made sure that was agreed with the parking company before they hired them.

h2g2 said:

The second is that introducing a fee to park - even if it's disguised as a fee to renew a permit - on a space someone already has rights to park on is a further derogation from grant.

The law allows freeholders (or their management company) to charge reasonable fees for admin work - like issuing parking permits.

Assuming it takes 10 mins of admin work to issue a £12 permit - that's equivalent to £72 per hour. A tribunal would almost probably say that's reasonable.

But depending on the wording of the lease, it's questionable whether individual car owning leaseholders should each pay the £12 fee, or whether the total cost of issuing all the permits should be added to the service charge, so that all leaseholders pay a share of it (not just car owners).

There's also the 'technicality' of whether the £12 bill is correctly presented as a leasehold administration fee.

artyboy

eddddy said:

h2g2 said:

Firstly, the freeholder has given the rights to decide who is authorised to park and who is not to a private company, when the leasehold agreement says the leaseholder has unfettered rights to park. The parking company presumably have requirements on who gets permits, but if you don't have the permit they issue you (even if it doesn't arrive until two weeks after they start issuing charges) you are not authorised to park in the space you own.

Obviously, if a leaseholder is issued with a parking charge notice for parking in their own space (for whatever reason), there should be a simple process to get the charge cancelled.

The freeholder (or their management company) should have made sure that was agreed with the parking company before they hired them.

h2g2 said:

The second is that introducing a fee to park - even if it's disguised as a fee to renew a permit - on a space someone already has rights to park on is a further derogation from grant.

The law allows freeholders (or their management company) to charge reasonable fees for admin work - like issuing parking permits.

Assuming it takes 10 mins of admin work to issue a £12 permit - that's equivalent to £60 per hour. A tribunal would almost certainly say that's reasonable.

But depending on the wording of the lease, it's questionable whether individual car owning leaseholders should each pay the £12 fee, or whether the total cost of all the permits should be added to the service charge, so that all leaseholders pay a share of it (not just car owners).

There's also the 'technicality' of whether the £12 bill is correctly presented as a leasehold administration fee.

Lots of 'shoulds' (you forgot to include that leaseholders cars should be whitelisted so they don't even need permits) but if you read a small selection of threads on the parking boards, you'll see that's just not how it happens in practice.

It's not exactly rocket science when you consider these parking 'firms' (putting it politely) make a living from issuing tickets. Or did you actually think they're happy just with the fees they get from residential managing agents...?

eddddy

artyboy said:

Lots of 'shoulds' 

I'm not sure why using the word "should" is a problem - as in "You should not drive faster than 70 mph", "You should not murder people".

What word would you like me to use instead - that would be concise and easy to understand, and isn't too 'emotional'?

artyboy said:

(you forgot to include that leaseholders cars should be whitelisted so they don't even need permits)

What makes you think I forgot that as a possibility? It's pretty obvious.

That would be another way of managing the parking. 

Obviously, it would involve...

• leaseholders registering their registration number

• registering the reg number of a hire car, or a loan car

• registering the reg number of visitors, etc

• updating reg number details when leaseholders change their car

So an administrator would need to be paid to maintain that list - taking phone call updates, actioning emails

• Would an administrator need to be available evenings and weekends to update the list, in case you hire a car or have unexpected visitors over a weekend or in the evening?

• Or maybe an app or website could be developed which allows leaseholders to make updates online (but that app might be expensive - and the leaseholders would have to cover the cost)

• But would some leaseholders (perhaps older ones) not have access to smartphones or computers and/or not be comfortable using that apps and websites?

None of those problems are insurmountable. But the overall cost to leaseholders might be higher than simply paying £12 and putting a card/sticker on their dashboard.

artyboy said:

but if you read a small selection of threads on the parking boards, you'll see that's just not how it happens in practice.

It's not exactly rocket science when you consider these parking 'firms' (putting it politely) make a living from issuing tickets. Or did you actually think they're happy just with the fees they get from residential managing agents...?

To answer your questions..

• I've read lots of those threads
• I understand the business model of Parking management companies
• I didn't think what you suggest I think

So to summarise...

• The concept of managing parking on housing estates is a good one

• Many of the companies that offer parking management services are dodgy, and rely on a flawed business model

So the solution probably is:

• Management companies should be more careful about the parking management companies they hire

• Management companies should pay the parking companies a fixed fee for managing the parking, rather than let those companies rely on income from parking charge notices.

So for example, a Management Company should pay a parking company, say, £1000 or £2000 a year (or pay £100 per visit) to send somebody around periodically to check car regs etc, and issue Parking Charge Notices - and any parking charges collected should go to the management company.

And those costs (e.g. £1000 or £2000 year) should come from the leaseholders service charge funds - i.e. it is paid by all the leaseholders.


Does that all make sense?

user1977

eddddy said:

artyboy said:

Lots of 'shoulds' 

So for example, a Management Company should pay a parking company, say, £1000 or £2000 a year (or pay £100 per visit) to send somebody around periodically to check car regs etc, and issue Parking Charge Notices - and any parking charges collected should go to the management company.

And those costs (e.g. £1000 or £2000 year) should come from the leaseholders service charge funds - i.e. it is paid by all the leaseholders.

There's an even simpler (and more money-saving) solution which is that you invite the parking company in for free to manage the parking, and they can keep whatever they collect from the unauthorised parkers. No need for the leaseholders to pay anything.

Grizebeck

Anyone who thinks parking companies are a good thing need their heads testing
When the easy low hanging fruit has been harvested they will go after the residents
Dealing with Parking Firms is essentially my day job