N1SDT Claim - DCBL on behalf of OBServices parking

Nykkuno

Issue Date: 17/04/2024

I have not done the Acknowledgement of claim yet.

Background:

Car owned by lessee was parked in the space that has been demised via a leasehold agreement to the lessee was given a ticket for not showing a permit.

Lease wording:

The right to use the parking space (if any) allocated from time to time to the Premises the parking space allocated at the time hearof being that shown numbered 4 on the Plan Provided Always that the use of said parking space is entirely at the Leaseholder’s own risk.

I would just like to present my wording used in my defence to check that it is not too long

Additionally the state of the sign may be an additional strong defense as well, as it is supposed to present the contract terms....

hxxps://tinypic.host/image/OPC-Sign-%28Map-Outline-Hidden%29.DRzbfB

Defence Wording (Based on latest template)

3. The Particulars refer to the material location as ”XXX”. The Defendant has, since xx xx xx, held legal title under the terms of a lease, to “XXX” at that location. At some point, the managing agents contracted with the Claimant company as a contractor but they are strangers to the lease and the Defendant was led to believe that the regime was intended to deter trespassers. No 'relevant contract' or 'relevant obligation' was communicated to the Defendant, nor would the Defendant have accepted a contract foisted upon them with onerous terms and charges. It is not enough to put signs up and ride roughshod over the rights of the Defendant that already exist and which take precedence, given the leasehold title held.

4. Trying to re-offer a parking/loading (in or out of the allocated bay) right or easement that the Defendant already enjoy by express or implied right under my lease, lacks any aspect of consideration.

5. There is no licence to park that this Claimant can possibly offer the Defendant that they do not already have as an unfettered right. This Claimant is trying to run the area where the Defendant’s car is parked like a commercial site, on the same punitive terms as a trespasser would be charged. This would clearly be a derogation from grant and the Defendant wish’s to make clear that they did not agree to contractual terms, just because a permit was foisted upon them with no opt out offered. Permits were displayed as a courtesy only, to show other residents who was parked, and they have previously always been able to stop to unload or load items anywhere in the car park area.

6. The outside car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space.

7. Under the terms of the Defendant's lease, one reference is made about parking motor vehicles. The reference is on page 31 of the lease stating that the overall lease arrangement is for the property and an allocated parking space.

7.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

8. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

9. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

10. Further and in the alternative, at the time the ticket was raised, the Claimants parking sign at the entrance to the estate did not have any readable reference to the requirement of a permit to be displayed.  This is clearly a nonsense, because if no conditions are displayed on the sign, there is no offer, and therefore no contract.

10.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortuous interference, being a private nuisance to residents. In this case the Claimant continues to cause a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

Nykkuno

I forgot to add a picture of the N1SDT.

hxxps://tinypic.host/image/N1SDT-%28Masked%29.DRsyjh

Coupon-mad

OK.

Defence looks good except two small things:

change "under my lease" to "under the Defendant's lease"

and you have a typo: "wish's" (not a word).

KeithP

Nykkuno said:

Issue Date: 17/04/2024
I have not done the Acknowledgement of claim yet.

With a Claim Issue Date of 17th April, you have until Tuesday 7th May to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 20th May 2024 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute. 

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Nykkuno

Coupon-mad said:

OK.

Defence looks good except two small things:

change "under my lease" to "under the Defendant's lease"

and you have a typo: "wish's" (not a word).

Thanks Coupon-mad.

I have now filed my AoS and have made the corrections to my defense that you have suggested.

Did you see the picture of the sign?  And if you did, do you think that it is another strong defense?

As it is DCBL, I fully expect to get the usual follow up communications from them and eventually filing for a discontinuance.

Should I file my defense now as it is ready to ClaimResponses.CNBC@justice.gov.uk, or wait until a specific number of days after the AoS?

Coupon-mad

Do the defence as soon as you are ready.

I haven't seen a photo.  Not sure if you mean you pm'd me.  I no longer read or reply to pm's. No time!

Nykkuno

Coupon-mad said:

Do the defence as soon as you are ready.

I haven't seen a photo.  Not sure if you mean you pm'd me.  I no longer read or reply to pm's. No time!

It was in my initial post.....

....

Additionally the state of the sign may be an additional strong defense as well, as it is supposed to present the contract terms....

hxxps://tinypic.host/image/OPC-Sign-%28Map-Outline-Hidden%29.DRzbfB

....

Anyway, thanks for the advice.  I'll proceed with sending the e-mail.

I'll post the inevitable discontinuance paperwork here in a few months time so that it can be added to the pile that you guys are collecting.

Coupon-mad

https://tinypic.host/image/OPC-Sign-(Map-Outline-Hidden).DRzbfB

Wow.  There are no t&cs so it would be impossible to be in breach.

Nykkuno

Coupon-Mad

said:

hxxps://tinypic.host/image/OPC-Sign-%28Map-Outline-Hidden%29.DRzbfB

Wow.  There are no t&cs so it would be impossible to be in breach.

I thought that you would find the state of the sign entertaining... 

Annoyingly the evidence provided to POPLA were their archive pictures, showing complete wording.

Nykkuno

Just checked the progress of the claim against me on moneyclaim...  Is the below good news or bad news for me?

Claim Status

• A claim was issued against you on 17/04/2024
• Your acknowledgment of service was submitted on 22/04/2024 at 13:37:22
• Your acknowledgment of service was received on 22/04/2024 at 16:05:34
• Your defence was received on 24/04/2024
• DQ filed by claimant on 14/05/2024
• DQ sent to you on 14/05/2024
• General sanctions order was made on 19/06/2024

Nykkuno

I should have searched the forum posts first.

I am assuming that, as I have had nothing official in the post since filing the defence, that this is against the claimant.

They will likely act on the sanction and I will get the official DQ through the post presently....