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

DullGreyGuy

eddddy said:

Grizebeck said:

DullGreyGuy said:

Grizebeck said:
 against the wishes of the leaseholders

Please provide the evidence of this @Grizebeck because it sounds much more like someone with an axe to grind than something based on actual statistical analysis. 

Stopping commuters parking in residents parking spaces via the use of parking companies was welcomed by residents in each of the developments I've lived in thats done it. 

Let's just say I see it week month in month out of county court claims I deal with 
Only welcomed until the residents are targeted when the commuters have vanished.

So the solution isn't "Get rid of parking management companies".

Instead possible solutions include:

• Give residents a simple, fair, robust way of cancelling unfair parking charges

and/or

• Pay the parking management companies a flat fee for managing the parking, so they are not incentivised to issue unfair charges to residents

So residents should engage with the management company to explain the problems and propose solutions - rather than just getting angry and ranting.
 

There was the case on here the other day where it was Share of Freehold and so it was the OP in that thread's co-owners that had voted to introduce a parking company (the OP there had missed the AGM so hadn't personally voted). It wasn't a change in lease, it's enforcing the existing lease that specified where you could/couldnt park. 

They were complaining because they did routinely park outside of their space but felt it was ok for them to do it because they were at the end of the line and so not causing an obstruction to others. This is the problem with simple/fair processes, that when you are the one thats told your fee stands you start saying it's not fair or robust. 

Certainly in our area it was commuters that were the main culprits of the problems I doubt it was uniquely them. Our current gaff doesn't have any parking management and to get into the carpark you need a remote and still there are the periodic emails saying a XXX reg YYY is parked in someone else's space, move it. Often its vans so presumably people having workmen in and saying to them to park anywhere rather than the £12/hr the council charge for on street

ThisIsWeird

Grizebeck said:

You should see how parking companies operate by seeing the parking ticket section 
So many parking firms ride over the rights of lease holders
PCM being a common one

But do they do so successfully? 

In H2's case, I'd have thought that one challenge should stop any further action dead.

eddddy

nicmyles said:

I cannot imagine it is legally possible for a company to charge you for parking your car on your own property that is demised to you under the lease, unless the lease makes provision for it to do so. You need to consult a solicitor.

As I mentioned, the 'real world' problem is that some parking management companies send intimidating, scary letters demanding payment - even though leaseholders have the right to park. 

Some people are intimidated into paying

But the demand for payment wouldn't stand up in court.

A solicitor would probably charge a few hundred pounds to read your lease, read the car park signs, read the letters you've received and give advice. You couldn't claim the solicitor's fee back from anyone. So it's probably not economically viable to consult a solicitor.

nicmyles said:

I guess your only issue is if they were to claim that they are not, in fact, charging you to use your own space, but are charging you for entrance to the car parking area, which involves you travelling over land you do not own?

No - that wouldn't be valid either. And they issue Parking Charge Notices - which are for parking.

Grizebeck

ThisIsWeird said:

Grizebeck said:

You should see how parking companies operate by seeing the parking ticket section 
So many parking firms ride over the rights of lease holders
PCM being a common one

But do they do so successfully? 

In H2's case, I'd have thought that one challenge should stop any further action dead.

Easy because a lot of people are gullible and give in 

eddddy

DullGreyGuy said:

There was the case on here the other day where it was Share of Freehold and so it was the OP in that thread's co-owners that had voted to introduce a parking company (the OP there had missed the AGM so hadn't personally voted). It wasn't a change in lease, it's enforcing the existing lease that specified where you could/couldnt park. 

As a reminder, the other thread was about somebody parking where they weren't authorised to park - and getting a parking charge notice.

This thread is about parking where you are authorised to park - and getting a parking charge notice.


By "fair" - I mean trying to mimic what a court would decide.

So in respect of the other thread, if there was a clear sign saying "If you park here you will be charged £100", a court would probably decide that the £100 was payable.

If there was no sign (and the driver had not been told about the charge in any other way), a court would probably decide that the £100 is not payable.

Or a "nice" management company might put a letter on the windscreen the first time saying "You're not authorised to park here, if you do it again, you'll be charged £100". The problem is, a parking management company probably wouldn't agree to do that, because it earns them no revenue.



And with respect to this thread, and based on anecdotes on the Parking Forum, an example of not being "fair" would be a leaseholder saying "I was parked in my allocated space" and the parking company replying "I don't care, I'm not listening. Pay £100."


But obviously, I don't know if anecdotes on the Parking Forum are accurate. 

nicmyles

eddddy said:

nicmyles said:

I cannot imagine it is legally possible for a company to charge you for parking your car on your own property that is demised to you under the lease, unless the lease makes provision for it to do so. You need to consult a solicitor.

As I mentioned, the 'real world' problem is that some parking management companies send intimidating, scary letters demanding payment - even though leaseholders have the right to park. 

Some people are intimidated into paying

But the demand for payment wouldn't stand up in court.

A solicitor would probably charge a few hundred pounds to read your lease, read the car park signs, read the letters you've received and give advice. You couldn't claim the solicitor's fee back from anyone. So it's probably not economically viable to consult a solicitor.

I'm not sure why not, if the alternative is to be subject to unending fines? Plus the element of principle.

eddddy

nicmyles said:

I'm not sure why not, if the alternative is to be subject to unending fines? Plus the element of principle.

I'm not 100% sure which part of my post you're replying to.  (Incidentally, it's not a fine, it's a charge for parking.)

If I sent you a letter saying I was going to charge you £100 because you wore green socks on Friday - would you spend hundreds of pounds consulting a solicitor - in case you want to wear green socks in the future?

Or would you say "That's nonsense. If you believe I owe you £100, take me to court."?


It's the same principle here. If somebody says you owe them £100 for parking in your own parking space, you would reply "That's nonsense. If you believe I owe you £100, take me to court".


It's not really viable to consult a solicitor every time somebody sends you a bill you disagree with.

ThisIsWeird

Grizebeck said:

ThisIsWeird said:

Grizebeck said:

You should see how parking companies operate by seeing the parking ticket section 
So many parking firms ride over the rights of lease holders
PCM being a common one

But do they do so successfully? 

In H2's case, I'd have thought that one challenge should stop any further action dead.

Easy because a lot of people are gullible and give in 

Yes, but this applies to a known group of people, a fixed number of leaseholders. One wee note sent out to each to explain that the CP Co has zero power to enforce a charge when you are legitimately parked should do the trick.

h2g2

Thank you for all your replies! I'm trying to work out my best course of action.

It seems I have two options:
1. County court is easier and more affordable up front, but there is a flaw/risk that has been pointed out that I haven't suffered proveable monetary loss, and therefore may not be able to win any claim made this way. It would depend on whether I can demand compensation for breach of contract or not, and my case that they claim to issue arbitrary charges to me for claimed breaches of contract may not necessarily mean it works the other way.

2. An injunction is more likely to work, but carries greater financial risk. It's more expensive up front, and if it gets overturned I could be liable for losses incurred as a result. From what I read an injunction is a temporary rather than a final order, and the whole process if far more intimidating, frankly.

I did already look into going to a property tribunal, but they only hear cases where the landlord alleges the leaseholder is in breach of the lease agreement and (so far as I can tell) they don't make binding judgements - though obviously a leaseholder would be poorly advised to ignore one. They do not hear cases where a leaseholder alleges the landlord is in breach.

eddddy said:
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.

As another commentator here writes, there is a lot of "should" going on here.

The appeal process is to appeal via PCM's systems, who argue that their signs form a contract and that the charge is valid, or to go to the management company who say they cannot intervene and to settle it with PCM. The freeholder says this was set up by the management company and that they have had no visibility into it, and furthermore that they believe it is dispute between me and the management company.

To my knowledge no-one has been sent court proceedings or anything yet, but they have only been around for a few months so far.

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

There's plenty of prior case-law to say that if the leasehold grants the right to park it cannot be removed or charged for later. The leasehold agreement makes only two requirements on our parking space: we keep a car or motorbike with up-to-date road tax, and we don't make bonfires or store anything dangerous (such as explosives) in it.

I have had an actual lawyer go over the lease (which wasn't cheap) and confirm that the regulations as imposed are unlawful, FWIW.

user1977 said:
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.

The problem with this (which is basically what has happened) is that the parking company has been told they are allowed to issue charges to residents in their own demised spaces, and because their only income is from issuing charges and the vast majority of cars are parked in their own authorised spaces the vast majority of the charges are issued against correctly parked cars, because otherwise its not worth their while.

eddddy said:
So residents should engage with the management company to explain the problems and propose solutions - rather than just getting angry and ranting.

For what it is worth, the management company has ignored all correspondence I've sent to them raising concerns, except for a brief acknowledgement that it did break the lease agreement, but was required in order to manage parking. The freeholder has actually had some dialogue with me but concluded it saying that they aren't aware of the terms of parking introduced, nor are they aware of the requirements in the leasehold agreement, but that it's not their concern and to please resolve it with the management company. (Never mind the fact that it's their leasehold agreement that's being broken...)

ThisIsWeird said:
I'd have thought - but don't know - that your rights under your Lease would override any attempt by this 3rd party to charge you for 'mis-parking'. Provided you do use your own allocated space (are they determined?), I doubt the CP Co would succeed in fining you, even without a permit. And even less likely if you had a valid reason - permit applied for but not received, permit sun-faded, other car parked in your space, etc. Ie - "I own that space" should be a defence if you've been unfairly charged.

You are right to a degree, but if I meekly accept their terms and conditions for a year they might be able to claim an easement was created and I agreed to it by displaying my permit. That's why I want to act pro-actively.

ThisIsWeird said:
I don't understand the point about 'security' - you say there is a security gate? How is this controlled, and why doesn't that do the job?

Remote controlled gate, but it's not hard to tailgate another car in, or wait for someone to leave and then enter before the gate shuts behind them. It's even possible to squeeze through a gap on foot and trigger the sensor to automatically open the gate if sufficiently determined.

ThisIsWeird said:
In H2's case, I'd have thought that one challenge should stop any further action dead.

Yes, and I am trying to work out how to properly make that challenge.

ThisIsWeird

h2g2 said:

You are right to a degree, but if I meekly accept their terms and conditions for a year they might be able to claim an easement was created and I agreed to it by displaying my permit. That's why I want to act pro-actively. Don't accept their T&Cs, but continue as usual. If/when you end up with a ticket, that's surely the time to challenge it in court? You will have an actual case, with a potential loss.

ThisIsWeird said:
I don't understand the point about 'security' - you say there is a security gate? How is this controlled, and why doesn't that do the job?

Remote controlled gate, but it's not hard to tailgate another car in, or wait for someone to leave and then enter before the gate shuts behind them. It's even possible to squeeze through a gap on foot and trigger the sensor to automatically open the gate if sufficiently determined. Does that actually happen?! Someone who wishes to park in your compound will tailgate in, and then wait to tailgate out again later?!

ThisIsWeird said:
In H2's case, I'd have thought that one challenge should stop any further action dead.

Yes, and I am trying to work out how to properly make that challenge. As before, I think I'd wait until a charge is actually levied. I think it may be easier to defend than litigate. Time to make sure you have LegProt added to your Contents and car insurances.

See replies in bold.

If you actually believe/ have confirmed by your solicitor that they will be breaching the terms of your Lease by ticketing you, then I think the usual way to go is an injunction. These, as far as I know, are not at all costly, and can be largely DIYed. That's what I read on this forum anyway, to do with nuisance and harassment cases from neighbours.

Worth a good Google, I think. Breaching a valid injunction is (again, I have read) an actual 'crime'!