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Own Apartment Parking Fine

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  • edited 21 August 2018 at 2:32PM
    FruitcakeFruitcake Forumite
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    edited 21 August 2018 at 2:32PM
    Lease 1 of 3 mentions Landlord's covenants including allowing quiet enjoyment. This means not allowing interference by outside agents and third arties.

    From Lease 2 of 3,

    11 Contracts (Rights of third parties) Act 1999

    Nothing in this lease confers any rights on any person pursuant to the contracts (Rights of third parties) Act 1999


    To me and the man on the Clapham omnibus, this means that no third party such as parking scammers have any rights on the property, only the parties named on the lease, these being the landowner and the leaseholder.

    Perhaps someone with legal knowledge can comment.
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  • edited 21 August 2018 at 2:48PM
    FruitcakeFruitcake Forumite
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    edited 21 August 2018 at 2:48PM
    Have you purchased part of the property (staircasing)? If so, then you own a percentage of the whole property which could be construed as meaning you own part of the parking space you use.

    In Lease 3 of 3 under 2 Standard Lease Obligations, it states: -
    Although initially the property is not owned outright, the Leaseholder does have normal responsibilities of a full owner.

    I would interpret that as the leaseholder has responsibilities as if he/she owned a parking space or part thereof. Since a Leaseholder may not sublet, then a for profit business is not allowed to occupy any part of the property, including the Leaseholder's parking space.

    I would be asking the Landlord and MA why a third party scammer (MPs words in open parliament) is operating such a for profit business in breach of the lease and in breach of your quiet enjoyment.
    I married my cousin. I had to...
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  • Nell22Nell22 Forumite
    32 Posts
    Thanks for coming back to me.

    I actually own 100% of the apartment, the previous owner who i bought off was part of shared ownership. I bought the apartment in full, though Notting Hill still own the land that it is built on, so is still a 125 year leaseheld. This is why i think the parking company charging me is ludicrous, i own the apartment and the spot comes with the apartment, though it is managed by the management company - nobody else should be parking in this spot apart from me!

    We as a community have challenged UK CPMs role previously to our management company, in turn they responded that it is for the better of the development, to deter rouge parking taking up our spaces. Very annoying! I will raise the issue again with my local MP,

    I'm really glad to see that there seems to be some legal substance and backing, in what to me is just common sense.

    If anybody has any further tips on how to draft this defence letter, it would be much appreciated. I filled the AoS yesterday, though i'd want to get the draft letter done asap. Fruitcake i've taken your points on board so far and will try and research theses a bit further.

    Many thanks
  • SystemSystem Forumite, Community Admin
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    If anybody has any further tips on how to draft this defence letter,

    Since UKCPM issue these like confetti, and since UKCPM know they cannot impose terms, there are lots of examples of "primacy of contract" /"primacy of lease" defences.

    We've done most of the work for you in getting to the core argument, you only need to take a bit of time and search for an earlier version of a PoC defence to amend.

    And to do a bit more work for you, use ones by Johnersh or Bargepole who are both legally qualified.

    You do not come across as someone wanting to do much more work on this, so we'll leave you to get a template rather than ask you to fight these on behalf of fellow residents.
  • NeilCrNeilCr Forumite
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    Nell22 wrote: »

    This is why i think the parking company charging me is ludicrous, i own the apartment and the spot comes with the apartment, though it is managed by the management company - nobody else should be parking in this spot apart from me!

    We as a community have challenged UK CPMs role previously to our management company, in turn they responded that it is for the better of the development, to deter rouge parking taking up our spaces.

    We will all agree with you that nobody else should be parking in your space. The problems arise when someone actually does and how to stop them. Sounds like what is happening here with the mention of "rogue parking".

    Perhaps worth suggesting alternatives to the ManCo. Parking posts as mentioned on this forum a number of times are not expensive and pretty effective. We have them

    That would do away with the need for a PPC and ensure your sole use of your space.

    In terms of the ticket you've had excellent advice from Fruitcake and IamEmanresu on how to proceed.
  • edited 1 October 2018 at 3:12PM
    Coupon-madCoupon-mad
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    edited 1 October 2018 at 3:12PM
    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)
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  • Nell22Nell22 Forumite
    32 Posts
    Hi All,

    I submitted the below defence on the 14/09/18. Thanks to coupon-mad who provided a great template.
    IN THE COUNTY COURT
    Claim No.:
    Between

    UK Car Park Management
    (Claimant)

    -and-


    (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 26/03/07. 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 ”XXX”. The Defendant has, since 16th November 2016, 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 to enforce parking conditions at the estate.

    4. 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.

    5. Under the terms of the Defendant's lease, one reference is made about parking motor vehicles. The reference is simply in the header of the lease stating that the overall lease arrangement is for the apartment and an allocated parking space.

    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. 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.

    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 additional sums 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. 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 £251.71, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

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






    (Defendant)

    14/09/2018 (Date)
  • Nell22Nell22 Forumite
    32 Posts
    I have since received the below from Gladstone. They outline that they would not like to have an oral hearing as they see the case as straight forward. I'm following the newbies post and guidance on actions to go forward with next, though just wanted to keep this thread active and updated as guidance to anyone else going through the same procedures.

    UK Car Park Management Limited

    -v-

    Mr X



    We act for the Claimant and have notified the Court of our Client’s intention to proceed with the claim.



    Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing



    This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.



    You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.





    Yours sincerely



    Nicole

    Call Handler
  • nosferatu1001nosferatu1001 Forumite
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    Yep, their standard !!!!!!!! request, so the standard repsonse from the newbies thread is in order. All routine, sadly
  • Coupon-madCoupon-mad
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    All as expected. Just say no! As per the NEWBIES thread.
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