Parking ticket for parking in own residential space

Kotic

Hello all,

A few years ago the management company at my block of flats (where I am a leaseholder) introduced a parking management scheme run by De Vere parking.  I've recently received two tickets in the span of two weeks on my car (one attached to my window, one that was sent to, and annoyingly automatically paid, by my leasing company).  I've read the newbies thread, but there are a couple of things in my case which I feel aren't directly addressed there or in the associated links here.

In my case my lease gives me  "exclusive use of the Parking Space shown labelled P and the plot number and edged green on the Plan or any other parking space designated from time to time by the Landlord or the Management Company as available to the Tenant for the purpose of parking a private motor vehicle taxed, insured and in a roadworthy condition".  There is, as usual a term in the lease which allows the management company to make regulations, specifically in my lease worded as an obligation for the tenant " To comply with and make every endeavour to ensure that all persons living in or visiting the Property or using any part of the Development shall comply with all regulations as the Management Company shall from time to time make for the preservation of the amenities of the Development or for the general convenience of the occupiers of the Block (the Management Company having the power to vary or add to such regulations from time to time as it thinks fit".  The latter is the clause that De Vere are seeking to rely on to override my ability to park in my space without having to display a permit.  So the first question here is whether such terms are enough to override primacy of contract.  From my mind, I don't think a parking scheme is really for general amenity of convenience of occupiers if it ends up charging occupiers for using their own space!  A scheme for the general benefit and amenity would be one that would only fine those improperly using the car park (and not actual owners who just aren't displaying a permit).  However, I know that this common sense interpretation may not be how a court would see it.

The next critical thing (as I read the information) is whether i've formed a contract with De Vere for parking.  The sign is permissive in my view stating "parking permitted under the following conditions" (namely being in your own space and displaying a permit).  Therefore it's possible to see a contract being formed here.  The one thing i'm not clear on though is whether the charge of £100 (reducing to £60 if paid early) would be seen as a reasonable estimate of loss or commercially justifiable.  I know that the Jopson case is said to differentiate from Beavis in the case of residential parking, however from reading the transcript I can't see this clearly (especially regarding the distinction between penalties and normal contractual damages based on loss).  Is arguing purely on the basis that the charge is unreasonable likely to succeed, or would De Vere be able to rely on the the argument that though the charge isn't a reasonable estimate of their loss, it's commercially justifiable as otherwise how would they do their 'job'.

Hopefully i've provided enough info here, but let me know if any more details would be helpful. 

Coupon-mad

So the first question here is whether such terms are enough to override primacy of contract. 

No. This has been tested in UKPC v McCarthy (at appeal, heard by HHJ Saffman years ago, so it is persuasive) - specifically the interpretation of the word "exclusive".  However there is no transcript of that hearing.

Your priorities are:

1. appeal the windscreen PCN now - urgent - admit to driving. Don't tell them it's a leased car.  In the appeal tell them you are a leaseholder with "exclusive use" of that space.  That phrase has been tested on appeal (UKPC v McCarthy, before HHJ Saffman in Leeds Court) and the Defendant won.  Exclusive use must be interpreted by its natural meaning and in favour of the consumer (if ambiguous, which it isn't). Expressly forbid them IN WRITING (and their staff, contractors or self ticketers) to photograph, touch or ticket vehicles in that space and you will sue them for harassment if they do so again.

2.  Inform the lease firm in writing of the dispute and instruct them NOT to pay any parking charges from private firms, against this vehicle, but ONLY to transfer liability.  If they ignore this clear instruction you will not be liable for any they pay.

3.  Reverse the payment for the one they paid by disputing the payment with your card provider as it is unauthorised. Chargeback.  The reason for chargeback is, the lease firm paid a scam invoice; you have exclusive use of the bay in question and your car lease only talks about penalties from Authorities (which this is not, it was an unsolicited invoice and issued without your consent, on your land).

4.  Do this. Get Devere REMOVED from the estate immediately and not replaced:

https://forums.moneysavingexpert.com/discussion/5997200/pcm-company-introduced/p3

h2g2

The term that helps you most with De Vere is "primacy of contract". The lease agreement already gave you exclusive use of that space. It appears they cannot form a contract with you because they have not offered you anything you don't already have. They can't charge you for the right to park when the right to park is already yours, any more than I could try to rent the shirts in your own wardrobe to you.

The term for the freeholder / managing agent is "derogation from grant". They have sold you a parking space with the lease and also sold the same parking space to a private parking company to exploit for profit.

I'm having a similar problem with PCM at my flats where I am a leaseholder. The managing agent, unfortunately, seem to have bought PCM's propaganda on this.

My plan so far has been:

1. Write to the freeholder asking them to intervene. (In my case the freeholder responded along the lines of "not my problem; it's the managing company's purview; complain to them.) If the freeholder takes your side there's really nothing else that needs to happen.

2. Formally complain to the managing company. If they are a member of an ombudsman service they will have requirements to respond in certain ways and complaints can be escalated to the ombudsman if required. (In my case I'm at the stage of going  to the ombudsman.)

3. You have, on the face of it, a sound defence (primacy of contract) against the tickets. 

Fruitcake

Forget the reasonable estimate of loss point, but everything else advised above are all valid points. 
Thoroughly check your vehicle lease contract to see if there is any reference to parking charges as opposed to fines or penalties from an authority. If there is no mention of PCNs from unregulated private parking companies, then the lease Co has breached your contract with them. If it does mention them, then it is an unfair contract term as defined by the Consumer Rights Act 2015 because paying the charge without your permission removes your right to appeal.

The CRA 2015 also applies to your lease. Imposing a parking scheme with terms that are more onerous than the original lease terms is an unfair contract term, as is removing your existing rights to quiet enjoyment and a right to park.

Le_Kirk

Ask the MA/MC when, NOT IF, the consultation of all residents took place and what was the date and outcome of the ballot.  This is in line with the Landlord and Tenant Act 1987, where 75% of the residents must be in favor and not more than 10% against any changes.

Kotic

Thanks all. I have appealed already and admitted I was the driver, so that should be covered (the appeal was rejected by De Vere the same day, essentially just saying there are thousands of these schemes around the country, but no reference to law or any response to my arguments on law). 

I would love to get De Vere removed, and the management company who are completely useless, but I know these are longer term aims and not immediately solutions to the PCN.

I will complain to the freeholder if I can find who they are, but I imagine they are mainly there to hold the investment (as a relatively new build property we are stuck with escalating ground rent terms) and so will have limited interaction with this if any.

I understand the derogation of lease point. There was no consultation here, I just received a letter telling me that the scheme was being introduced. However, I imagine that the point they will bring up is that the management company can make regulations. To be devils advocate, the argument is that this gives them the right to introduce this scheme and the requirement to display a permit is a reasonable regulation ( I completely disagree, but I know that the law doesn’t always follow common sense). Coupon Mad, were you saying that this term is enough to allow the scheme to be introduced? If so it feels like I have a relatively weak case here.

on the leasing company paying, I see this as a separate issue and I know there is already a thread hundreds of pages long discussing this. The car is a company car, so the charges get deducted from payroll (therefore no way to block the payment). I’ve been in touch with the leasing company to ask them not to pay these, got a rejection saying that this is the term my employer agreed to, and if I don’t like it I need to take it up with my employer. I will investigate this further separately, following the advice above, but at the moment I’d like to focus on the charge that has come to me.

Castle

Kotic said:

on the leasing company paying, I see this as a separate issue and I know there is already a thread hundreds of pages long discussing this. The car is a company car, so the charges get deducted from payroll (therefore no way to block the payment). I’ve been in touch with the leasing company to ask them not to pay these, got a rejection saying that this is the term my employer agreed to, and if I don’t like it I need to take it up with my employer. I will investigate this further separately, following the advice above, but at the moment I’d like to focus on the charge that has come to me.

Unless your contract of employment allows this, then it's an unauthorised deduction.

Half_way

What are the exact terms and words of the lease agreement?
Would charging for an unregulated parking charge/speculative invoice fall foul of relevant consumer legislation?
If for example the lease company was owned by the PPC, devere that would be a nice money spinner

Castle

Half_way said:

What are the exact terms and words of the lease agreement?
Would charging for an unregulated parking charge/speculative invoice fall foul of relevant consumer legislation?
If for example the lease company was owned by the PPC, devere that would be a nice money spinner

I'm guessing that the lease is between the leasing company and Kotic's employer which would make it a "business to business" contract.

Coupon-mad

Coupon Mad, were you saying that this term is enough to allow the scheme to be introduced? 

No. The opposite - but I see my reply was badly written and said 'yes' which should have said 'no!  Sorry.  No.  Your word EXCLUSIVE was tested on appeal before HHJ Saffman and you prevail. Your term 'exclusive rights' is powerful and means what it says.  No third party (not even the MA) has rights to do anything in your space except something like essential pipe repair groundwork, etc.

As you've appealed the windscreen PCN you can ignore Devere now. Do not reply.  No taking the bait- ignore them unless you get a court claim (you MUST tell them if you move house, obviously).

Crack on with 2 and 3 on my list.

h2g2

Kotic said:

To be devils advocate, the argument is that this gives them the right to introduce this scheme and the requirement to display a permit is a reasonable regulation ( I completely disagree, but I know that the law doesn’t always follow common sense).

My MA are also using this argument. It is important to say that my rebuttal has not been (to my knowledge) tested in law yet.

My rebuttal to this take on it is twofold:
a) Such a regulation is still derogation from grant, as found by [much caselaw I can't remember here] and thus inherently unreasonable.
b) Appropriate remedies for breach of any regulation should be in the lease agreement (mine allows for "costs of enforcing regulations" to be added to the management fee - check yours). As such, should any reasonable regulations around parking be agreed upon, breach of them must be handled the same way as any other breach of regulations. Requiring payment of a fee or charge not set out as payable in the lease agreement is not a regulation, but an attempt to create a new contract. (My lease agreement makes me liable for the ground rent, a portion of the management fee. No other charges are mentioned.)

Maybe also applicable to my case, I don't know about yours:

c) If the model is that a regulation was created requiring a permit, why are the PPC claiming it is a contractual charge arising from their claim that there is no automatic right to park? The PPC's claim would require the permission to park granted in the lease to be extinguished entirely.