Parking at my apartment

Below is a witness statement which I drafted for someone with a similar (but not identical) problem to yours.


It covers issues such as the legal principles of non-derogation from grant, privity of contract and others which do not appear to have received much of an airing in your thread so far.


You may be particularly interested in the counterclaim and how it was calculated.




In the County Court at Worcester
Claim Nos. XXXXXXXX, XXXXXXXX & XXXXXXXX
Claimant: Vehicle Control Services Limited
Defendant: <your name>
Date of Hearing: 16 November 2018
Witness statement of <your name>

Introduction

1. I, <your full name>, of <your address> am the Defendant in this case and I make this, my witness statement.

2. I acknowledge that vehicles registered in my name or otherwise associated with me by belonging to members of my family or our visitors were parked at <location> on the dates mentioned in the Claimant’s particulars of claims.

3. I do, however, deny that I owe any amount to the Claimant in relation to the vehicles being parked there on those or any other occasions.

4. Although the Claimant asserts that its cause of action is a breach of contract, I have never entered into any contract with the Claimant.

5. This case relates to land on the Estate where my rights and obligations are governed by a long-term (250-year) lease (see exhibit XXX) running until the year 2246.

6. The Claimant has chosen blatantly to disregard both the existence of my lease and my rights under it.

7. In doing so, without making any attempt to seek or gain my consent, the Claimant has implemented a parking scheme on land which I own.

8. The Claimant’s invalid scheme demands that anyone (including me) parking on my land must display a parking permit. In the event of a driver not doing so, the Claimant affixes a parking charge notice to the vehicle declaring that the driver has become liable for a parking charge of £100.

9. The Claimant has affixed a number of tickets to vehicles parked in my demised parking space despite those vehicles having been parked in full compliance with my lease.


The Claimant’s abuse of the Court process

10. The Claimant has made no effort whatsoever to narrow the issues between us.

11. Even at this late stage, the Claimant has not disclosed the identity of its client, i.e. the person who consented to the Claimant operating its parking scheme on the Estate.

12. Although, in its Particulars of Claim, the Claimant makes bald statements about its “terms and conditions”, it has not provided me with a copy of the contract containing those terms and conditions and the Claimant has not specified the particular term(s) or condition(s) which it purports me to have breached.

13. The Claimant appears to use the Court process as part of its business model in the knowledge that, by relying on the ignorance of others, many of the victims of its predatory residential parking schemes will be so intimidated that they will pay amounts to which the Claimant is simply not due.

14. By bringing its claim, the Claimant is blatantly abusing the Court process.


The Defendant’s lease

15. Under my long-term lease, the “’Demised Premises’ means the apartment and parking space (if any) shown edged red on the Lease Plan being apartment number 30 on the third floor…”. My parking space is “shown edged red on the Lease Plan”.

16. I do, therefore, have exclusive use of the land on which I park, i.e. my parking space, for the foreseeable future.

17. When a vehicle is parked on the Estate by either myself, another member of my family or any visitor to the apartment, it is always parked in full compliance with my lease on my parking space.

18. My lease makes no provision allowing either any other party to it or any stranger to it, such as the Claimant, to impose regulations on my parking space or those parking on it.

19. Decisions as to whether and what such regulations might exist in relation to my parking space are matters entirely for my own discretion and prerogative.

20. I am known as the “Tenant” under my lease. There are, of course, other parties to it:-

a. the “Landlord”, i.e. the freeholder and lessor;

b. the “Developer”, i.e. the party responsible for building the estate which, although introduced as one of the parties, is barely mentioned in it thereafter; and

c. the “Company” which “was appointed by the Developer to carry out the management and maintenance of the Estate”.

21. Although my lease grants some limited powers to the Landlord and/or the Company to prescribe regulations in relation to certain other matters, those powers do not extend to regulations relating to my parking space.

22. My lease specifies the amounts which I am obliged to pay on an ongoing basis and these do not include parking charges.

23. In any event, the Claimant is unable to enforce the terms of my lease because my lease does not expressly provide that the Claimant may do so and because my lease contains no clause that "purports to confer a benefit" on the Claimant, which would allow the Claimant to enforce the lease terms pursuant to the Contracts (Rights of Third Parties) Act 1999. The rule of "privity of contract" under which a person can only enforce a contract if he is a party to it does, therefore, apply.

24. Furthermore, in the event of being in breach of my lease, which I deny, the Landlord’s and/or the Company’s remedy would be to seek damages from me and/or an injunction ordering me not to repeat the breach as opposed to an arbitrary parking charge.

25. I am, of course, further protected against the Claimant’s unauthorised and predatory parking scheme by:-

d. the legal principle of non-derogation from grant implied in all leases; and

e. the legal principle of the right to quiet enjoyment also implied in all leases.

26. My lease is the document of paramount importance in this matter. My lease trumps any arrangements into which the Claimant has entered due to my lease’s primacy of contract.


The Claimant’s negligence

27. Like all businesses, the Claimant should surely be aware of its obligations under Section 13 of the Supply of Goods and Services Act 1982, which is headed “Implied term about care and skill” and states that “In a relevant contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.

28. According to its website, the Claimant “was founded in 1990… we have experienced continual growth and now… operate on over 600 sites…”. The Claimant promotes itself to potential clients by stating that “Every operational environment is individual, with its own specific requirements”.

29. It is strange then that, with all its knowledge and experience and its recognition that “Every operational environment is individual, with its own specific requirements”, the Claimant entered into a contract relating to my land without heeding the terms of my lease and the requirements of legislation.

30. One would certainly expect a parking operator to be familiar with Schedule 4 to the Protection of Freedoms Act 2012, which is headed “Recovery of Unpaid Parking Charges”, and which contains the following definition:-

“’relevant contract’ means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a) the owner or occupier of the land; or

(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land”

31. Given that my lease runs until the year 2246 and has demised my parking space to me, I am both the owner and the occupier of the land for the foreseeable future.

32. Both the Protection of Freedoms Act 2012 and my lease are, of course, documents of public record available from Legislation.gov.uk and the Land Registry respectively. A raison d'être of the Land Registry is to provide leases, etc. to persons needing to obtain information on pre-existing rights affecting land.

33. It is odd that, despite its boastful knowledge and experience and its recognition that “Every operational environment is individual, with its own specific requirements”, the Claimant commenced using my land for the purposes of its business without realising that its client had no right whatsoever to consent to such an arrangement.

34. I submit that the Claimant’s behaviour indicates that it has not carried out its so-called “car park management” service with any care or skill at all. It has, at best, been negligent.

35. The Claimant’s negligence has resulted in it applying for and obtaining my personal data from the DVLA without reasonable cause and, in doing so, has flagrantly disregarded data protection legislation and deceived the DVLA.

36. In addition, the Claimant’s negligence has resulted in it attempting to enforce a non-existent term of my lease and, by doing so, the Claimant has committed a tortious act: i.e. the act of interference with contractual relations which, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party causing economic harm.

37. Furthermore, by making use of my parking space for the purposes of its business, the Claimant has serially trespassed on my land.

38. The Claimant should not be allowed to hide behind its own negligence.

39. Perhaps, with all the Claimant’s self-proclaimed knowledge and experience and its recognition that “Every operational environment is individual, with its own specific requirements”, the Court might conclude that it is impossible to attribute the Claimant’s actions to mere negligence.

40. Instead, the Court might attribute the Claimant’s actions to intentional fraud worthy of investigation by the Police.


The Claimant’s lack of standing

41. There is nothing which compels me to enter into a contract with the Claimant for parking on my parking space.

42. I have not granted the Claimant the right to use my parking space for the purposes of its business.

43. As the parking space being part of the premises demised to me without any rights being reserved, no other person has the power to grant the right to the Claimant to use my parking space for the purposes of its business.

44. The Claimant does not, therefore, have any right to use my parking space for the purposes of its business.

45. It follows that the Claimant has no parking to offer there, i.e. for the purposes of the alleged contract, there can be no consideration for my alleged promise to abide by the Claimant's terms and conditions of parking. Consequently, this lack of consideration means that no enforceable contract could have been formed between the Claimant and myself.

46. In turn, it follows that the Claimant has no grounds for charging for parking in my parking space.

47. Insofar as my parking space is concerned, the Claimant is nothing better than a serial trespasser and a nuisance (and is possibly much worse) without any standing whatsoever.


The Landlord’s and the Company’s lack of standing

48. As stated previously, “although my lease grants some limited powers to the Landlord and/or the Company to prescribe regulations in relation to certain matters, those powers do not extend to regulations relating to my parking space”.

49. My lease (in paragraph 4.3 on page 4) states that “The Lessor or the Company may {acting reasonably) vary such regulations or make further regulations for the good management of the Building or the Estate and for the benefit of lessees of Dwellings on the Estate.”.

50. Any regulations made in accordance with paragraph 4.3 on page 4 must serve the dual purpose of being “for the good management of the Building or the Estate” AND “for the benefit of lessees of Dwellings on the Estate”.

51. I have never been made aware of any regulations having been made under paragraph 4.3 on page 4, e.g. I have never been given a copy of any such regulations.

52. Even if such regulations have been made, they are clearly not “for the benefit of lessees of Dwellings on the Estate”. I have little doubt that the Claimant would assert that I, as a lessee, derive some benefit from the Claimant managing parking on my parking space, but any such assertion would simply not be true.

53. If a trespasser were to park a vehicle on my parking space, the Claimant would not take any action to remove the trespassing vehicle.

54. The Claimant would simply affix a ticket to the vehicle and leave it there in the hope that it would be able to secure payment of a parking charge.

55. I, on the other hand, would be left by the Claimant to face the cost and inconvenience of finding somewhere else to park.

56. The Claimant would not offer part of any parking charge to me to compensate for the cost and inconvenience which I suffered. Instead, the Claimant would simply line its own pockets with the parking charge after, perhaps, paying an amount of commission to its client.

57. At its worst, the Claimant’s behaviour results in it seeking to extort hundreds of pounds of undue parking charges from me. It is preposterous to claim that any regulations encouraging such selfish behaviour is for the benefit of either this particular lessee or the lessees in general.

58. My lease (in paragraph 9 on page 15) contains a regulation stating that requiring me:-

“Not to cause any obstruction in or on the main entrances stairways or passages in the Building nor in or on the drives or access roads and footpaths adjacent or leading to the Building by leaving or parking or permitting to be left or parked any motorcycle bicycle perambulator or other vehicle belonging to or used by the Lessee or occupier of the Demised Premises or by any of his friends servants or visitors and to observe all regulations made by the Company from time to time relating to the parking of such vehicles.”

59. I have never been made aware of any regulations having been made under paragraph 9 on page 15, e.g. I have never been given a copy of any such regulations.

60. In any event, the single sentence in paragraph 9 on page 15 concerns itself “regulations made by the Company from time to time relating to the parking of such vehicles”, i.e. vehicles causing an obstruction in certain specified places. This has nothing whatsoever to do with a “motor car” parked in its “parking space”, both terms being very noticeable by their absence from the sentence.

61. There is nothing in the lease specifically allowing the Landlord or the Company to make regulations relating to parking on my parking space.

62. My parking space is mine until the year 2246. Until then, both the Landlord and the Company have ceded their rights to it to me.

63. Even if my lease were to permit the Landlord or the Company to make some regulations to accommodate the Claimant, those regulations could not run contrary to the legal principle of non-derogation from grant are implied in all leases.

64. The principle of non-derogation from grant was summarised by Lord Denning, Master of the Rolls (i.e. the Head of Civil Justice), in Molton Builders Ltd v City of Westminster (1975) (30 P&CR 182, at p 186). The broad principle expounded by Lord Denning was that:-

“…if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other…”.

65. Lord Denning’s words are particularly apt in many parking cases involving leaseholders with allocated parking spaces. If Lord Denning had been deciding this case, he may have changed his words to say:-

“if the Landlord and/or the Company agrees to confer the exclusive right to park in a demised parking space on a Lessee, the Landlord and/or the Company must not then enter into an arrangement allowing a parking contractor to rent out the space to any Tom, !!!! or Harry at an exorbitant charge for the purposes of the parking contractor’s business because that would not just substantially deprive, it would entirely deprive the Lessee of the enjoyment of that benefit in two ways: the Lessee, who would have paid a higher purchase price for a property with a parking space, would have been deprived of the exclusive use of that space and the Lessee would be treated no differently to Tom, !!!! or Harry insofar as the parking contractor’s terms are concerned. That would be to take away with one hand what is given with the other…”.

66. In any event, as already mentioned, if I were to be in breach of my lease, which I deny, the Landlord’s or the Company’s remedy would be to seek damages from me and/or an injunction ordering me not to repeat the breach as opposed to an arbitrary parking charge.

67. Additionally, in paragraph 7.1 on page 10 of my lease, the Landlord covenants:-

“That the Lessee paying the rents hereby reserved and performing and observing the several covenants on his part and the conditions herein contained shall peaceably hold and enjoy the Demised Premises during the Term without any interruption by the Lessor or any person rightfully claiming under or in trust for it.”

68. The Landlord and the Company have no standing in relation to parking on my demised parking space.


The managing agents’ lack of standing

69. The lease makes provision for the Company to employ managing agents.

70. Where agents have rights under the lease, this is expressly stated.

71. The managing agents have no rights under the lease.

72. The managing agents are mentioned on only two occasions in the lease: the first time on page 11 involving circumstances where “written notice has previously been received by the Company or its solicitors or managing agents”; and the second time on page 16 where it mentions that “Total Expenditure” may include “reasonable fees of the Company for the management of the Estate and the cost of employing managing agents (if employed)”.

73. As the Company lacks standing in this matter and its managing agents have no standing in their own right, it follows that the managing agents have no standing at all in this matter.



Summary

74. By bringing its claim, the Claimant is blatantly abusing the Court process.

75. My lease is the document of paramount importance in this matter. My lease trumps any arrangements into which the Claimant has entered due my lease’s primacy of contract.

76. With all the Claimant’s self-proclaimed knowledge and experience and its recognition that “Every operational environment is individual, with its own specific requirements”, the Claimant has acted negligently as a minimum but has, perhaps, acted fraudulently.

77. Insofar as my parking space is concerned, the Claimant is nothing better than a serial trespasser and a nuisance (and is possibly much worse) without any standing whatsoever.

78. The Landlord and the Company have no standing in this matter.

79. The managing agents have no standing in this matter.

80. I submit that the Claimant’s claim should be dismissed.


Counterclaim

81. If, before the Claimant introduced its parking scheme, it had bothered to use skill, care and diligence to make enquiries through the Land Registry to find what pre-existing terms applied to the land, the Claimant would have realised that it needed to negotiate with and obtain agreement from myself the parking scheme to apply in the my demised parking space.

82. At the date of calculation in mid-August 2018, the Claimant has been using my demised parking space for its business purposes for a period of 1,047 days.

83. It follows that the Claimant has trespassed on the Defendant’s rented parking space for that number of days.

84. In local car parks available to the general public, the cost of one day’s use of a parking space can be obtained for £8.

85. My understanding is that, under Common Law, insofar as trespass is concerned, the Court is required to assume a hypothetical negotiation between a willing and reasonable person in the position of the trespasser, i.e. the Claimant, and a willing and reasonable person in my own position as the owner and occupier of the land.

86. I further understand that the appropriate measure of damages for trespass is the price which such persons would have negotiated as the reasonable price payable for the relevant right of user, or the sum of money which might reasonably have been demanded as a quid pro quo for permitting the trespass.

87. As the Claimant deems £100 to be a reasonable charge for the use of my demised parking space for one day, the Court could regard that as a reasonable amount on which to base my counterclaim.

88. Frankly, however, I believe £100 for one day’s use of a parking space to be an exorbitant amount, not a reasonable amount.

89. Instead, I regard the very much lower amount of £8, which is the cost of one day’s use of a parking space available elsewhere locally as being much more reasonable figure on which to base the counterclaim.

90. My counterclaim is, therefore, for the sum of £8,376, i.e. 1,047 days at £8 per day.

91. Although that amount is based on a counterclaim for trespass alone and I believe that it would be reasonable for the Court to award a further amount for tortious interference with my lease, I seek the sum of £8,376 in settlement of the whole of the counterclaim.

92. In addition to agreeing to the counterclaim, I would ask the Court to order the Claimant to cease and desist from its activities in relation to my parking space.

93. As the Claimant did not submit a defence to my counterclaim within the usual 14-day deadline, I request the Court to award me the sum, i.e. £8,376, sought in my counterclaim by default.

94. The Claimant’s particulars of claim, being so lacking in cause of action and based on contract law, offer no defence to the counterclaim which is based on property law.

95. I believe that, as a result of the Claimant’s failure to provide either a defence to the counterclaim or adequately detailed particulars of claim, a finding in favour of my counterclaim is justified.


I believe that the facts stated in this witness statement are true.


Signed: Dated:
<your full name>

I am curious as to why Coupon-mad finds my presence to be "curiouser and curiouser".


You could try seeing what the managing agents make of the following letter.


If they attempt a serious reply at all, they will probably quote the extract from your lease in post #25 and then that can knocked into fits. I expect them not to reply in which case, if this goes to Court, you can show how unreasonable the managing agents were by not answering. If they only give a partial reply, you can go back to them and ask for what they failed to provide.


If you find yourself receiving a letter of claim, you can adapt the letter to demand the same information and documents from the parking operator.


Obviously, if you require any clarification about the letter's contents, please do not hesitate to ask.


[I see all of the numbered paragraphs are numbered 1. I leave you to sort that out.]






Dear <salutation>,





As you know, I am the leasehold owner of my apartment.





Your company, as the managing agents for the development, must surely know that, when it comes to a leasehold property, it is the lease which sets out the rights and obligations of all the parties to it.





The lease is of paramount importance. It has primacy of contract over any other arrangements made by any other arrangements made by any of the parties to it.





My lease states that one of the rights granted to me is “The right to use the parking space allocated for the time being to the Premises the parking space allocated at the time hereof being that shown marked on Plan 2 annexed hereto with the number corresponding to the plot number of the Premises…”. My lease says nothing about my parking space being available for use by a parking operator for the purposes of its business. My lease says nothing about any obligation to display a parking permit. My lease also says nothing about any obligation to pay a parking charge. I bought and paid for parking when I purchased my lease.





You suggest that the terms of my lease have changed in some way which has enabled your company to allow a parking operator to use my allocated parking space for the purposes of its business. Frankly, I do not believe that to be true. I assert that I am still under no obligation to display a parking permit and I am still under no obligation to pay a parking charge if I do not display a parking permit.





I further believe that your company’s contract with the parking operator is fatally-flawed and that your company overstepped its authority by entering into that contract. I have no doubt that your company is in breach of my lease and is responsible for the parking operator trespassing on my parking space on a daily basis.





Nevertheless, if you truly believe the contract to be valid, please provide me within the next 30 days the following information and documents:-

• if your company believes that my lease contains express provision to allow the parking operator to operate a parking scheme on my allocated parking space, a note of the specific clauses in the lease applicable to this situation;

• if your company believes that any rules or regulations have been made in accordance with my lease’s provisions to allow the parking operator to operate a parking scheme on my allocated parking space:-

1. a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and

1. a note of the specific clause(s) in the lease in accordance with which those rules or regulations were made;

• as my lease granted an exclusive right to park on my allocated parking space to me as the lessee, a copy of the instrument which either transferred those individual rights from me to the parking operator or transferred a share of those individual rights from me to the parking operator;

• if your company believes that my lease’s terms permit third parties, e.g. the parking operator, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note of the specific clause(s) in the lease applicable to this situation;

• if your company does not believe that my lease’s terms permit third parties, e.g. the parking operator, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note explaining how your company has concluded that the parking operator has acquired such a right;

• if the parking operator’s parking scheme has not been introduced in accordance with my lease’s provisions, a note explaining how your company has concluded that its parking contract with the parking operator and the parking operator’s alleged parking contract(s) with driver(s) parking on my allocated parking space have acquired primacy of contract over my lease;

• notes giving details of the due diligence process undertaken by your company and the parking contractor to ensure that not only your company’s parking contract with the parking operator but also the purported contract(s) between the parking contractor and driver(s) parking on my allocated parking space met the “Implied term about care and skill” requirement contained in the Supply of Goods and Services Act 1982;

• a note giving your company’s explanation as to how the current ticketing and charging regime accords with the legal principle of non-derogation from grant implied in all leases (see below);

• a note giving your company’s explanation as to how the current parking regime with its exorbitant parking charges and threats of court action against lessees using their own allocated parking spaces accords with the legal principle of quiet enjoyment implied in all leases; and

• any other information and documents on which your company would rely in court in support of its belief that the current parking regime is valid.

The purpose of requesting the documents and information requested above is, of course, to narrow the issues between your company and myself. Naturally, if you provide everything which I seek, I shall reconsider my position.





As the managing agents of leasehold properties, your company should have no difficulty meeting my request.





In the event, however, that you do not provide me with the above information and documents within the next 30 days, I am writing to tell you that your company must instruct the parking operator to cease and desist from using my parking space for the purposes of its business.





That will, of course, only cover the future, not the past.





For the past, your company and I will need to enter into negotiations. We shall need to discuss the amount which your company owes me for allowing its agent, the parking operator, to use my parking space for its business purposes up to the present. I believe a reasonable basis for determining the amount owed to me would be the number of days that the parking operator has been using my parking space for the purposes of its business and the daily cost of using other parking spaces elsewhere locally.





Before signing off, I should perhaps offer the following explanation about the long-established legal principle of non-derogation from grant which is implied in every lease.





The principle of non-derogation from grant was summarised by Lord Denning, Master of the Rolls (i.e. the Head of Civil Justice), in Molton Builders Ltd v City of Westminster (1975) (30 P&CR 182, at p 186). The broad principle expounded by Lord Denning was that:-





“…if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other…”.





Lord Denning’s words are particularly apt in many parking cases involving leaseholders with allocated parking spaces. If Lord Denning had been deciding a case between your company and myself, he may have changed his words to say:-





“…if one party to a lease agrees to confer the exclusive right to park in an allocated parking space on the lessee, that first party must not then enter into an arrangement allowing a parking operator to rent out the space to any Tom, !!!! or Harry at an exorbitant charge for the purposes of the parking operator’s business because that would not just substantially deprive, it would entirely deprive the lessee of the enjoyment of that benefit in two ways: the lessee, who would have paid a higher purchase price for a property with a parking space, would have been deprived of the exclusive use of that space and he would be treated no differently to Tom, !!!! or Harry insofar as the parking operator’s terms are concerned”.





It is, of course, perverse that a private car park intended for the exclusive use of residents should be turned into a public car park where, according to the parking operator’s parking scheme, Tom, !!!! and Harry can now park on terms no different from those available to that defined group. Has all necessary planning permission been obtained for this change of use?





In essence, the notion that your company could be able to allow a parking operator to use my allocated parking space for the purpose of is business without my consent is as ridiculous as the notion that your company could be able to allow a property letting agent to rent out my apartment for the purposes of its business. In both situations, I would be substantially deprived of the enjoyment of benefits to which I had a right.





I look forward to receiving your reply within the next 30 days.





Yours sincerely,