Unfair Resident Parking Permit PCN Advice

FOBF_1

1505grandad said:

As Above  -  FYI:-

Even the latest unregulated CoP (soon to be replaced by a proper regulated PPCoP by the Government) recognise/acknowledge  this scam:-

THE SINGLE CODE OF PRACTICE

14

Relationship with landowner 

NOTE 3: Particular care is needed to establish appropriate contractual terms, including the application of parking terms and conditions, in respect of controlled land where leaseholders may have rights that cannot be qualified or overruled e.g. by imposing a requirement on the resident of an apartment block to display a permit to park in contravention of their rights under their lease, or to ensure that free parking periods do not breach planning consents.

Thanks for sharing this is extremely useful. Especially since they are part of the BPA!

Car1980

Seems to be some confusion here.

The tenancy agreement is between you and the landlord or lettings agent and is mostly irrelevant because it doesn't involve the parking company, and any quibbles would be between you and the landlord e.g. if it said there were no parking restrictions but you are receiving charges you'd be in a dispute with only whoever signed the tenancy agreement.

You need the LEASE of the flat. Ask the landlord, or find another owner-occupier in the development. Put a notice asking for a copy from someone in the lift or on the noticeboard.

jd576

FOBF_1 said:

Perfect, that's good to know. I'll start putting together a series of cases that I can cite. 

• K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (this one is binding)
• Pace v Mr N [2016] C6GF14F0
• Link Parking v Ms P [2016] C7GF50J7
• Jopson v Homeguard [2016] B9GF0A9E

https://www.parkingcowboys.co.uk/residential-parking/

Coupon-mad

This trumps most other case law as this is recent from the CoA:

https://gatehouselaw.co.uk/duchess-of-bedford-house-trm-co-ltd-v-campden-hill-gate-ltd-2023-ewca-civ-1470/

jd576

Car1980 said:

Seems to be some confusion here.

The tenancy agreement is between you and the landlord or lettings agent and is mostly irrelevant because it doesn't involve the parking company, and any quibbles would be between you and the landlord e.g. if it said there were no parking restrictions but you are receiving charges you'd be in a dispute with only whoever signed the tenancy agreement.

You need the LEASE of the flat. Ask the landlord, or find another owner-occupier in the development. Put a notice asking for a copy from someone in the lift or on the noticeboard.

I'm definitely not a property law expert by any means, so I'd welcome an explanation. I'd imagine that the tenancy agreement should mirror the head lease and not grant rights that are more expansive. If that's the case, why is the tenancy agreement mostly irrelevant?

A tenancy grants a leasehold estate right for the duration of the tenancy and if the head lease has an unfettered parking right and the leaseholder transfers it in the tenancy agreement, then is it not legally a part of the leasehold estate granted by the tenancy?

In which case, why could the leaseholder's right to park not be fettered by the freeholder or the parking company without a variation to the lease, whereas the tenant would have no recourse except to whoever signed the tenancy agreement?

Or are you just saying that OP needs to be able to show both head lease and tenancy agreement?

Coupon-mad

They don't/can't be expected to show it because the tenant was never party to (nor even shown) the Head Lease.

Their rights and grants flow from their AST. Ideally reflecting the Lease

Car1980

jd576 said:

Car1980 said:

Seems to be some confusion here.

The tenancy agreement is between you and the landlord or lettings agent and is mostly irrelevant because it doesn't involve the parking company, and any quibbles would be between you and the landlord e.g. if it said there were no parking restrictions but you are receiving charges you'd be in a dispute with only whoever signed the tenancy agreement.

You need the LEASE of the flat. Ask the landlord, or find another owner-occupier in the development. Put a notice asking for a copy from someone in the lift or on the noticeboard.

I'm definitely not a property law expert by any means, so I'd welcome an explanation. I'd imagine that the tenancy agreement should mirror the head lease and not grant rights that are more expansive. If that's the case, why is the tenancy agreement mostly irrelevant?

A tenancy grants a leasehold estate right for the duration of the tenancy and if the head lease has an unfettered parking right and the leaseholder transfers it in the tenancy agreement, then is it not legally a part of the leasehold estate granted by the tenancy?

In which case, why could the leaseholder's right to park not be fettered by the freeholder or the parking company without a variation to the lease, whereas the tenant would have no recourse except to whoever signed the tenancy agreement?

Or are you just saying that OP needs to be able to show both head lease and tenancy agreement?

A tenancy agreement can say anything and is unconnected to the lease. It's just a contract, often just a generic template off the internet.

jd576

Car1980 said:

A tenancy agreement can say anything and is unconnected to the lease. It's just a contract, often just a generic template off the internet.

A tenancy agreement is not unconnected to the lease. It's a (sub)lease given that it meets certain conditions.

In Street vs Mountford [1985], Lord Templeton defined 3 criteria for a lease

• A grant of exclusive possession
• For a period of time which is certain
• In return for the payment of rent

The AST tenant will have privity of estate and contract with the leaseholder, so generally speaking, they'll have to enforce their rights against the leaseholder / get the leaseholder to act on their behalf rather than assert the right directly against the freeholder.

But that's an enforcement issue only surely? Why should the 3rd party parking management company be able to bind a tenant with an AST (sublease) to a contract by conduct when they can't bind the head leaseholder who has privity of estate with the AST tenant? 

Sorry, genuinely puzzled by this - it's a complex part of the law I think. 

saajan_12

Not that complicated. 
A) If the head lease grants parking rights to the leaseholder (OP's landlord) AND the AST grants those rights onwards to the tenant (OP) then the parking company cannot fetter those rights. 

If the head lease does not grant parking rights but the AST tenancy does, then the OP's claim would be against their landlord who doesn't have right to the thing they are granting. The parking company may indeed have the right to enforce parking and charge for it if contracted to do so by the freeholder. 

C) If the head lease does grant parking rights but the AST tenancy does not, then the flat landlord has the right to park but OP does not. In practice, the landlord probably doesn't need the parking and would likely be happy to state they were happy to allow the OP to park. So as far as the parking company is concerned, you probably end up in the same position as A. 

The crucial difference is proving the difference between A and B. 

jd576

That concurs with the way I understood it @saajan_12; was just puzzled at the assertion above that the AST agreement is largely irrelevant. 

So OP needs the head lease agreement to be sure that OP's AST agreement has validly granted a right to OP that's within the landlord's power to grant. 

And if an unfettered right has been granted in the head lease and appropriately passed on in the AST, all the case law cited earlier is valid and OP has a strong case against the parking firm. 

I think this is quite an important point for anyone who has a residential parking charge who rents their property under an AST from a head leaseholder.