Advice needed: CLAIM form received on charge given for parking in own resident space

Papier_mache

I've received the following claim form through the post and don't how to proceed from this point and need advice please.

I received a parking charge notice for a vehicle parked in my parking bay at the communal parking area of my block of flats.  The charge was for not displaying a valid permit.  I disputed and argued that the permit must have fallen down, that I was the owner of the parking bay and that the company should cancel on these grounds.  They refused and I appealed to IAS - that failed as well.  I then ignored all further communication until receiving this claim form below:
I am now concerned and need advice on my next steps.  I've checked my lease and there are only two instances where parking is mentioned:
I feel like i have grounds for defence on primacy of contract but need more information and advice to know that is correct.  I also have no idea what to do next in terms of procedure, response, going to court etc.  

All help is much appreciated

Mark_d

The charge was issued for not displaying a permit.  It's the same with blue badges.  It doesn't matter if your lost it, or it fell down....it needs to be clearly visible for the parking warden.
The T&C clearly state that you need to have a valid permit clearly displayed on the windscreen.

Papier_mache

But doesn't primacy of contract override this?  my lease doesn't state anything about displaying permits, i own the parking space as part of my property as the lease states and I have the right to park a vehicle in the parking space.  The parking firm should be there to catch illegal parking in area, not to charge residents for parking in their spaces....

Le_Kirk

Your lease gives you primacy of contract and cannot be overridden by signs put up by any parking (management) company.  Write to the management company and tell them that you forthwith withdraw from their made-up parking scheme as you have the aforementioned primacy of contract and previously you had displayed a permit out of courtesy not as a legal requirement.  There are similar cases to this all over the forum; a search (change search term to newest from best match) will find some good reading for you.

Half_way

you need to get into whatever  company hired this parking company, typically a management company and tell them that they must instruct their agents to discontinue the case with immediate effect.
While court proceedings have started the claimant cam discontinue and withdraw.
 This will cost them, but  that cost is not your problem. 

Papier_mache

My management company have informed me of the following:

From a review of the example lease on file, we can see that the parking bay does form part of the demised area and is therefore the owner’s responsibility to maintain and repair as needed. From our records, and before my time managing the site, it is showing that the management company were provided with approval from owners to instruct parking control on the development to monitor the parking bays at the development due to instances of unauthorised parking. Whilst there is a gate at the development, which is a security measure, it was found that if the gate was faulty and in need of repair, the gates would need to be left open so that residents are able to get in and out and this will allow for unauthroised access whilst the works are being arranged. The parking control is another form of security to ensure no unauthorised access on the development.

 As per the above, the parking space is the responsibility of the owner, and our records indicate that the previous owner agreed for the bay to be part of the routine inspections, under the terms and conditions set out by NPC to display a parking permit in the vehicle. We did not receive any communication to advise that this was to change. Currently if there is any unauthorised parking on the development, residents can contact NPC to advise of the incorrect parking where the responsible vehicle would then be ticketed as a financial penalty for unauthroised parking.

There was no agreement with me, and no document transferred to me when i bought the property so I consider the lease to still hold primacy of contract.  Would that be correct?  and do I argue that with the management company as the reason to have the ticket action discontinued?

Le_Kirk

You need to ask the management company when the consultation with the leaseholders/freeholders took place, when the ballot was held and what was the result. These may help: -

https://www.legislation.gov.uk/ukpga/1987/31/contents

https://www.legislation.gov.uk/ukpga/1987/31/section/37

Coupon-mad

Mark_d said:

The charge was issued for not displaying a permit.  It's the same with blue badges.  It doesn't matter if your lost it, or it fell down....it needs to be clearly visible for the parking warden.
The T&C clearly state that you need to have a valid permit clearly displayed on the windscreen.

This is poor advice and not true, when the OP owns the space.

They have 'primacy of contract' that no cardboard sign t&cs can interfere with; the PPC is causing a private nuisance and derogation from grant.

Whatever the previous property owner did or didn't agree to, is likely to be irrelevant. The OP never had to display a permit. Their lease is King. The demised property includes the parking space and they can't be charged for using it any more than they could be charged for using their loo!

We doubt the property agent can prove that it was 'agreed' that this part of the demised property could have a commercial racket run in it, which plainly interferes with the next owner's peaceful enjoyment and grant.

Papier_mache said:

I received a parking charge notice for a vehicle parked in my parking bay at the communal parking area of my block of flats.  The charge was for not displaying a valid permit.  I disputed and argued that the permit must have fallen down, that I was the owner of the parking bay and that the company should cancel on these grounds.  They refused and I appealed to IAS - that failed as well.  I then ignored all further communication until receiving this claim form below:

I am now concerned and need advice on my next steps.  I've checked my lease and there are only two instances where parking is mentioned:
I feel like i have grounds for defence on primacy of contract but need more information and advice to know that is correct.  I also have no idea what to do next in terms of procedure, response, going to court etc.  

My management company have informed me of the following:

From a review of the example lease on file, we can see that the parking bay does form part of the demised area and is therefore the owner’s responsibility to maintain and repair as needed. From our records, and before my time managing the site, it is showing that the management company were provided with approval from owners to instruct parking control on the development to monitor the parking bays at the development due to instances of unauthorised parking. Whilst there is a gate at the development, which is a security measure, it was found that if the gate was faulty and in need of repair, the gates would need to be left open so that residents are able to get in and out and this will allow for unauthroised access whilst the works are being arranged. The parking control is another form of security to ensure no unauthorised access on the development.

 As per the above, the parking space is the responsibility of the owner, and our records indicate that the previous owner agreed for the bay to be part of the routine inspections, under the terms and conditions set out by NPC to display a parking permit in the vehicle. We did not receive any communication to advise that this was to change. Currently if there is any unauthorised parking on the development, residents can contact NPC to advise of the incorrect parking where the responsible vehicle would then be ticketed as a financial penalty for unauthroised parking.

There was no agreement with me, and no document transferred to me when i bought the property so I consider the lease to still hold primacy of contract.  Would that be correct?  and do I argue that with the management company as the reason to have the ticket action discontinued?

It's NPC then.

James_Poisson

That reply from the management company is laughable.

They are stating that they consider that the parking company can issue a "penalty" at your behest which they cannot, they are also admitting that the parking company are there in business using your plot of land to make a profit without any recompense to you.

They are confirming that the parking space IS your responsibility, I would reply to that and tell them in that case to stop trespassing on it.

As for stating that slapping a charge on a vehicle is another form of security to ensure no unauthorised access on the development, what utter garbage that is.

The management company is paid by you to protect your interests and property, they should do just that not defend the profits of a scam industry which should, if their appeals set up wasn't also a sham, have cancelled their fake charge!

Papier_mache

I've discussed the matter with my management company again and expressed my dissatisfaction - they are going to 'reach out to NPC directly to try to assist with removing the two tickets that have been received, so please provide us with an image or the references of the tickets so that we can contact NPC to discuss. We must stress that we cannot guarantee that we will be able to have these tickets removed as this was issued under NPCs own terms and conditions.'  Will see what happens with that.

I've filed AOS now.

Doing some reading of the forums and template defenses on here, I've found this template on a thread (https://forums.moneysavingexpert.com/discussion/comment/74708527#Comment_74708527)

Copy of thread comment:

Here's a version of a defence based on a residential defence template written by bargepole, where the car park was access by a key fob, if that is similar to yours?

If not, at least it shows you a style of defence and you can plagiarise it:

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as 'COLOR="red"]LOCATION[/COLOR'. The Defendant has, since COLOR="Red"]DATE[/COLOR, held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.
{insert quotes from the lease to suit. The template example had: The definitions, at para. 1.6, define an 'Authorised Vehicle' as one which is taxed, roadworthy, and under 2 metres in height. At 1.54, the underground car park is defined. In Schedule 4, para.5, the Lessee agrees to only park a vehicle in an area set aside for that purpose. At para. 24, the Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans, boats, trailers, etc. to be parked anywhere, and repeats the taxed and roadworthy requirements.}

5.1. 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.

6. 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.

7. 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.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. 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 tortious interference, being a private nuisance to residents.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.






………………………………………………………. (Defendant)

……………………… (Date)

This defense seems to entail all I need: primacy of contract, lease details, fob entry to parking area.  Should I just edit this to suit?  it was from 2018 so don't know if there has been any legal changes or updated jargon that should replace anything.

When should I submit?  I'll wait for a response from the management company in the next few days but after this, if the charges are not rescinded, should I wait or just submit the defense immediately?

Again many many thanks for the responses and assistance on here.

Coupon-mad

No that's ancient.

Use the Template Defence* and just plagiarise the best bits from that old example, to put in your paragraph 3. And add in your specific info that you own the space (it is demised in your lease) and you have never agreed to any commercial racketeering by a parking firm offering your land to all-comers (including the owner, you) for £100 a day.

Your case is even stronger than that old defence as it's not merely about 'using a bay in a communal area'. Your space is demised exclusively to you.

Have you opted your bay out of the racket yet?

This scheme devalues your property.

Have you read the thread by @h2g2 where the residents are suing the RTM for a few thousand?


*pinned near the top of the Forum, so no link needed