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

chanz4

If granted exclusive use to a parking space, the parking invoice would be kicked out of court as it belongs to you and the parking firm needs to be working onbehalf of the person legally entitled to it.

chanz4

h2g2 said:

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.

h2g2 said:

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.

tell them as they instructed they have the right to request all resident vechles be white listed.