Contest in court OR accept landlord's offer to pay PCN? (District Enforcement/Residential Parking)

PrezvanRat26

Good morning!

As the title suggests, I am just exploring whether my case is worth defending or whether it'd be easier to just accept my landlord's offer to pay the charge.

Context:

I am a tenant in a flat block with residential parking. The Management Company for the flat block brought in District Enforcement to deal with parking 'issues'. Naturally, the result is them issuing PCNs to actual residents for not having parking permits displayed. I received a PCN for this offence on March 11 this year (NTK received March 13). At this time, because at no point during my 7-year tenancy (3 years owning/parking a vehicle) had I been told - by the Management Company/Landlord/Letting Agent - that I required a parking permit, so I am awaiting one to be issued when I receive the PCN. The permit was in my letterbox, so may well have been delivered prior to March 11, but as this all occurred in the same time period of a few days (requesting a permit through to PCN), I ignored the NTK and figured I'd just speak to the Management Company and ask them to get DE to cancel as there's clearly been a bit of a mix-up re: permits and that now I have my permit I am using it as directed.

I was wrong! The Management Company have remained steadfast in saying they don't get involved in parking issues and ultimately threatened to revoke my parking permit altogether if I continue to contact them about this! (I'm considering speaking to my MP/Housing Ombudsman separately about them, as I'm not sure they can behave in this manner.)

The above is nothing to do with the case, just the background as to why I didn't appeal, as I thought the Management Company would help.

At this point, the 28-days for appeal has passed (as they are an IPC member I don't think I'd be getting very far anyway). I have received a 'Notice of Impending Court Action' from DE (dated April 4), saying I have until April 18 to pay (i.e. tomorrow). Due to the mix-up with the permits, the landlord (who's a decent bloke to be fair) has said to the letting agent that he will pay the fine (i.e. I pay the PCN and £80 is then deducted from my next rent payment). 

(QQ: If I haven't paid by April 18, but decide to pay after, will DE likely just take the money and put a stop to any further court proceedings as they have their 'pound of flesh', so to speak?)

I'm currently torn between having an 'easy life' - i.e. I've got enough on my plate right now so just pay it and move on, as at the end of the day, it's not my money; and people should stand up to these companies and refuse to be bullied wherever possible as it is 'legalised' theft - it's the principle of it that I shouldn't let DE take £80 - regardless of whose money it is.

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Defending myself:

I have read the threads and the draft defence statements, etc. and can clearly see that what is on this forum is robust and would give me confidence in defending this in court (as my understanding is, with DE, they don't bluff with threats of court action, they will see it through). However, and again, reading the 'Newbie Thread', I appreciate that my case won't necessarily be different to what you've seen before - but I just want to ensure that I have enough to go on before deciding to accept/politely refuse my landlord's offer. From my limited knowledge/reading, these are the items I am considering including in any defence in addition to relevant parts of the templates forum members have already put together:


Primacy of Contract:

I did recently ring my MP's office, and the person there was helpful, they said the first thing I should do is check the landlord's lease/deeds to see if he has a right to park. At this point, he is yet to get back to the letting agent but did say he will look what it says re: parking.

There is also nothing in my tenancy agreement with the letting agent re: parking except for the following:

Not to store or keep on the Property or any communal car park any boat, caravan or commercial vehicle without the prior written consent of the Landlord or his Agent. Such consent will not be unreasonably withheld. The Landlord reserves the right to withdraw, for reasonable grounds and upon reasonable notice, any such consent previously given.

I imagine this isn't relevant at all/of any use. However, it just caught my eye as it seems to suggest that I am allowed to park a regular vehicle, as not included in the list. Whether this has any actual legal standing, I'm very doubtful.

However, away from that, in the absence of being able to view my Landlord's lease at this time, I had a look on the Management Company's website. There I found a page called Rules and Regulations (R&Rs). These are also up on the block noticeboard. Again, I am unsure whether these R&Rs form a contract. Yet, on the website, the Management Company seem to suggest that these are taken from the owners' leases.

Each leaseholder is bound by the "fifth schedule referred to regulations as to user" which is detailed below. When purchasing a property the lawyer acting for the purchaser should inform the purchaser as to his or her obligations under the leasehold. It has become clear in some cases that the purchaser has not read the lease or been informed of their obligations under lease by their lawyer. This has lead to difficulties with some leaseholders confused as to what their situation is under the lease. The following are the relevant rules embodied within the lease.

The R&Rs are then shown on the page (which supposedly was last updated November 2020 so these are a few years old). My understanding here is that they have listed on their website the key relevant rules/obligations from the owners' leases. This would suggest that, as they haven't been updated to mention parking/District Enforcement, then primacy of contract applies here for the landlord (and by extension, me, the tenant). Especially as this is what the R&Rs say in relation to parking:

Not to park or permit or cause to be parked in the courtyards, service roads or any place in the vicinity of the Building any motor or other vehicle except in such place as may be reserved by the Landlord for such purpose and designated as such nor in any parts of the said courtyards or service roads after 11:00pm and in particular not to cause a nuisance or annoyance to occupiers of any neighbouring Flats or premises by the starting or noisy running of any engine.

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Visitors are asked to park either in the road or in front of the appropriate garage. If parking on the driveway they are to allow access to garages for inhabitant. Failure to comply will result in a parking ticket being issued. Please also display in windscreen a note informing on which residence.

Now, when I moved in, I was told which garage was 'mine', which I could park in front of. This is covered by 'except in such place as may be reserved by the landlord for such purpose and designated as such'. 

So, if we are able to take the above as coming directly from the landlord's lease, I believe that primacy of contract is established - as the only ways the decision to bring DE in to monitor parking was communicated was via an update to the 'Parking' page on the website (which explains the layout for all their flats in terms of which garages belong to which block, etc.), on a separate A4 print-out notice in the noticeboard (i.e. not as part of the R&Rs notice), and in the 'newsletter' that goes to owners and agents. None of these are official in that there is no update to leases/tenancy agreements. As such, they are trying to unilaterally alter the contract without permission of the other party, which means I am in no way required to accept the 'contract' with DE I am supposedly entering into by parking in the car park (as per their sign).

I am happy to be corrected if I have misunderstood/misconstrued!

In addition, there is no mention of permits being required (in fact, it states visitors should stick their own note in the windscreen).

(Admittedly, I imagine I would need to review the owner's lease in full, as I understand there may be generic clauses about changes to the lease - however, I also understand that the leaseholders need to be given 30 days' notice. The notice in the noticeboard and the newsletter - where changes were communicated - were only shared in December 2023 (fewer than 30 days before DE began monitoring parking (January 1 2024)), which invalidates the changes - I read about this in another case).

So, at this point, is it fair to say that I have something to go on re: the Primacy of Contract defence?


Signage:

(Note: I have not been a forum member long enough to post images, so you'll have to bear with me.)

So, I decided to take a look at the signage and have a few observations. I am unsure if all/any of these are enough to show they've not followed IPC signage guidelines.

Firstly, there is a clearly defined entrance to the car park. There is no DE sign at the entrance. There is a sign from the Management Company stating:

Private Property: Access for Residents & Visitors Only

However, I am assuming that 'Access' doesn't automatically equate with 'right to park'? Even so, is this ambiguous having this sign at the entrance and not the DE one?

Secondly, there are still two DE signs in the car park. One for each flat block. The one for my flat block isn't positioned near the entrance of my building (i.e. along the direct path from the garages to the flat block entrance, but slightly out of view on the side of the building. I'd argue that this isn't clearly positioned, and that I shouldn't have to go read the sign on the other flat block that uses the car park.

Thirdly, the aforementioned sign is positioned quite high up the wall - which makes some of the text difficult to read - and it is also old and faded - also making some of the text difficult to read.

Fourthly, in the list of contraventions on the sign it states a charge will be applicable where:

The driver is not pre-authorised to park at the location

I am concerned with this phrasing. What is the definition of 'pre-authorised'? Do the instructions need to be clearer (i.e. 'You are required to display a permit' or something of that ilk)? To my mind, the relevant Management Company R&Rs provided above have given me 'pre-authorisation' to park. In addition, if one were to be facetious, the fact I own a permit gives me pre-authorisation to park - regardless of whether it is displayed or not. So, I would look to argue the wording of the sign is unclear and ambiguous.

Fifthly, the telephone number provided for enquiries or complaints doesn't work. I've tried ringing it and it can't connect a call.

So, and I appreciate it's difficult without images, but is there something in my arguments re: signage.

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Commercial Justification:

Annoyingly, the Management Company have said on the website that the PCNs from DE are legal based on the Beavis case. Even though, this isn't necessarily the case with residential parking.

Now, I concede, this I am very unclear on, but in a Parking Cowboys article on fighting residential PCNs, the following is stated:

In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification.

I can not see how there is commercial justification in charging a rent-paying resident £80 for parking in the parking space they have always had allocated to them and not obstructing/disrupting/impacting other residents/car park users in any way (ironically, I have had commercial vehicles and other visitors park in my space - it's just a shame this wasn't at the same time that the DE people were doing their arbitrary checks!).

Therefore, I am wondering if there is no commercial justification - and certainly no GPEOL - then is this PCN now a penalty?

In addition, and I imagine this is more interesting to note than actually useable in my defence, for a company that isn't allowed to issue penalties, DE say the following on their website:

There’s no denying it, enforcement is a significant part of what we do. It pays for our services, which are funded entirely by penalty payments from those few who choose to breach the rules. This means no direct costs for our clients and not a penny from anyone else.

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I appreciate there's a lot to read there, and it may not all be relevant, but I am just seeking guidance as to whether I have enough to fight this in court, or whether I should just take it on the chin and let the landlord pay the PCN as he has kindly offered to do.

I understand that it's difficult to fully gauge everything without being able to review the landlord's lease in full - which I may be able to do soon, but the 'deadline' for paying (see QQ above) is April 18 - so I imagine I have to decide by then.

I also wonder whether it's worth going back to the Management Company with the info around the R&Rs/Primacy of Contract as a final push for them to get the PCN cancelled with DE - although, based on previous dealings, I suspect this would be to no avail!

I imagine that, regardless of the course of action I choose, I will be speaking to my MP's office again about the PCN - as I know that this is being kicked about in Parliament at the moment (despite the government kowtowing to these rogue firms in the last couple of years) - and maybe about the behaviour of the Management Company as well - but that's ultimately by-the-by.

Any assistance from experience forum members on these matters would be greatly appreciated! Thanks!

Half_way

if your tenancy makes no mention of a permit then you can tell the management to stick it up their !!!!!!, and while your at it then then they they are jointly liable for the actions of their agents, ie the unregulated parking company and as such they must instruct then to cancel any and all parking charge notices

Coupon-mad

Forget no GPEOL which tells me you've been reading some very (very) old DE threads.

So does this, because this is old news:

"my understanding is, with DE, they don't bluff with threats of court action, they will see it through."

Not for over 5 years.

That used to be the case when their ex-copper director fancied himself as a court guru.  They do not file their own claims now.  

Hence ignore them and tell your landlord "thanks but no thanks" as a matter of principle.  Obviously the MAJOR thing is to inform DE if you move address within 6 years.  You cannot risk a court claim going to this address if you've moved out.

PrezvanRat26

Update re: Primacy of Contract:

I have now been shared a Tenant's Welcome Pack from Feb 2023 - which definitely wasn't shared with me as a tenant at the time of publication and I certainly didn't get one when I moved in in late 2017.

Nevertheless, this document has the same R&Rs mentioned above listed in Section 7.1 - with the heading 'Lease Rules'. There are various other rules/directives in the document, but this is the only one that mentions the lease.

They do mention parking permits in there and that a firm may issue PCNs. However, my understanding is, legally, a PDF called 'Welcome Pack' isn't a contract - there's nothing to sign, etc. - whereas the Landlord's Lease is a legal contract. So, I assume with this document coming to light, nothing changes. I still ideally need to know what is in the latest version of the lease re: parking, or I can just go off the fact the website states the R&Rs laid out in my original post are the 'the relevant rules embodied within the lease'.

PrezvanRat26

Coupon-mad said:

Forget no GPEOL which tells me you've been reading some very (very) old DE threads.

So does this, because this is old news:

"my understanding is, with DE, they don't bluff with threats of court action, they will see it through."

Not for over 5 years.

That used to be the case when their ex-copper director fancied himself as a court guru.  They do not file their own claims now.  

Hence ignore them and tell your landlord "thanks but no thanks" as a matter of principle.  Obviously the MAJOR thing is to inform DE if you move address within 6 years.  You cannot risk a court claim going to this address if you've moved out.

Thanks for replying.

OK - just to be clear: chances are District Enforcement are not going to follow up with any court action despite the Notice of Impending Court Action. I appreciate this may be hard to answer, but is there a chance I'm going to start getting harassed by debt recovery people instead? 

So, for now, just ignore it and nothing is likely to happen - that would be a relief!

I suppose, just in case they do take me to court, it'd be good to know that I'd have a decent chance of defending myself successfully based on the circumstances.

At the very least, it'd be good to have some solid grounding to begin a push with other residents to pressure the Management Company to cut ties with the District Enforcement charlatans!

Re: GPEOL. Of course, I get that since the Beavis case this no longer applies universally. It was more in the case of residential parking, where if there's no commercial justification for the charge (unlike Beavis) then does GPEOL come into play and make the charge a 'penalty' again by definition? I'm looking to learn as this is the 2nd PCN I've had to fight and until the govt. does something, there's a lot of knowledge to be aware of!

Thanks again!

Coupon-mad

Yes you will get debt demands. Laughable!

PrezvanRat26

Coupon-mad said:

Yes you will get debt demands. Laughable!

Cool - but as per the 'Newbie Threads', just ride them out I guess  

Trainerman

PrezvanRat26 said:

Coupon-mad said:

Yes you will get debt demands. Laughable!

Cool - but as per the 'Newbie Threads', just ride them out I guess  

Yes, they are powerless. You could always entertain yourself by trying to find amusing alternative uses for the paper they are printed on !

PrezvanRat26

OK, comments are re-assuring. 

1. No court action likely from DE.
2. Ignore the debt recovery letters (they have no power here!).
3. In the event I am taken to court, it seems like I have a case re: no mention of permits/parking company in the lease rules and regs (although, I'll feel more reassured once I've seen the landlord's actual lease in full).

Thanks!

Fruitcake

PrezvanRat26 said:

OK, comments are re-assuring. 

1. No court action likely from DE.
2. Ignore the debt recovery letters (they have no power here!).
3. In the event I am taken to court, it seems like I have a case re: no mention of permits/parking company in the lease rules and regs (although, I'll feel more reassured once I've seen the landlord's actual lease in full).

Thanks!

Yes to all of the above. Do remember to send a rectification notice if you move home within 6 years instructing DE to erase your old data and replace it with your new address for service. Ensure you use the word I have highlighted.

PrezvanRat26

Fruitcake said:

PrezvanRat26 said:

OK, comments are re-assuring. 

1. No court action likely from DE.
2. Ignore the debt recovery letters (they have no power here!).
3. In the event I am taken to court, it seems like I have a case re: no mention of permits/parking company in the lease rules and regs (although, I'll feel more reassured once I've seen the landlord's actual lease in full).

Thanks!

Yes to all of the above. Do remember to send a rectification notice if you move home within 6 years instructing DE to erase your old data and replace it with your new address for service. Ensure you use the word I have highlighted.

Perfect!

Well, I'll leave you all to it for the time being and will come back in the (unlikely) event that this is taken to court.

Really appreciate the help and info all!