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Large VCS claim received for residential space
Comments
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Should be the one document - the whole lease is one doc
Just get the request in now.0 -
Quick Update:
Landlord is now involved, and will be contacting site management on Monday morning. He has some weight to throw around as he is one of the "directors" for the building he says. I will continue to prepare my defence even so
He will also try to provide me with a copy of the lease, although I already sent a form this morning to Land Registry to request an official copy.
Thank you for everyone's help so far!0 -
That's positive.
Sounds like the flat owners may own the freehold of the complex and he is one of the resident directors. If that is so I'd have thought he would have a pretty good idea of why the PPC was introduced and what authority was used.0 -
When my MA wanted to "do something" about parking abuse in one of my
propertie I was able to get the appointment of a PPC voted down at the AGM.You never know how far you can go until you go too far.0 -
Your strongest point of defence is primacy of contract. This works far better if you, the tenant, were also the driver, so I would leave out any references to POFA / keeper liability.
Your defence is basically: I have a right to park, I parked in accordance with that right, now jog on.
Here are the sort of clauses you should be including, as the opening paragraphs of the defence (amend as appropriate):
1. Under the terms of the Defendant’s tenancy, a number of references are made to conditions of parking motor vehicles. [INSERT CLAUSES FROM TENANCY AGREEMENT HERE]. There are no terms within the tenancy requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
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2. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy. 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 tenancy agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.
I hate to disagree with Bargepole who is far better qualified in legal matters than I am, but a tenancy agreement (effectively a contract between landlord and tenant) can not override any t&c in the lease between the landowner and leaseholder. So it is the lease that has primacy, not the tenancy agreement.
If the tenancy agreement is in conflict or omission with the lease, then that would leave the tenant in dispute with his landlord for any costs incurred as a result.
Thankfully the landlord appears to be being helpful in this case.
There is also the point of the managing agents not being able to get permits immediately thereby laying tenants and leaseholders in to an entrapment situation with their appointed PPC.0 -
I hate to disagree with Bargepole who is far better qualified in legal matters than I am, but a tenancy agreement (effectively a contract between landlord and tenant) can not override any t&c in the lease between the landowner and leaseholder. So it is the lease that has primacy, not the tenancy agreement.
If the tenancy agreement is in conflict or omission with the lease, then that would leave the tenant in dispute with his landlord for any costs incurred as a result.
Thankfully the landlord appears to be being helpful in this case.
There is also the point of the managing agents not being able to get permits immediately thereby laying tenants and leaseholders in to an entrapment situation with their appointed PPC.
As another with less legal knowledge than Bargepole I'd tend to agree with Guys Dad's comment about the relationship between leashold and tenancy agreements. The onus would be on the landlord for not being clear with their tenant.
Certainly also agree about the delay in permits. In the landlord's shoes (if he is a director of the ManCo) I'd be kicking off about that0 -
I cannot agree with the suggestions in the two posts above.
If a lessee, who is a landlord, rents the property to tenant under an AST, he is then granting an exclusive right of possession of the property to that tenant for the period of the tenancy.
The tenant's rights are those contained in the tenancy agreement, and he is entitled to rely on those terms as being the whole basis of his occupation of the property. So, if the tenancy states the conditions of car parking, those are the conditions which apply, and they cannot be overridden by any PPC signage. Essentially, he already has a right to park, and a PPC cannot give him a right which he already has.
If the terms of the Head Lease, between the freeholder and the lessee, do contain wording which suggests parking permits must be displayed (unlikely, but possible), then it is the leaseholder, not the tenant, who is in breach, and any court action could only be taken against the leaseholder.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Thanks Bargepole. That clarifies it a bit for me.
It's sort of what I was getting at (with my muddled thinking). There is a "breach" of the lease (assuming the correct authority is in the lease or there has been a legal variation) and that exists whatever the tenancy agreement says. But you can only go for the landlord not the tenant. Which is what we do as a ManCo. If there is a breach of covenant we write to the owner.
Appreciate that!0 -
I agree with Bargepole, if I sign an AST with a tenant, that tenant should enjoy all rights and priviledges accorded by it. It is up tp me to see that they comply with those granted by my lease.
Many ASTs produced by letting agents are one size fits all agreements, which I suspect few landlords bother to read.You never know how far you can go until you go too far.0 -
Well follow that through.
You are saying that irrespective of the lease, the tenant can exercise all his any rights under the tenancy agreement.
If the lease had a restriction against pets yet the tenancy agreement was silent on that, then the tenant has no right to keep pets and the initial legal action could against the leaseholder by the tenant initially if he was forced to remove the pets.
Ultimately, the landowner could make moves to void the lease if the pets remained.
If the lease did contain any reference to parking conditions yet the tenancy agreement did not then the landowner is perfectly entitled to take legal action against whoever is parking contrary to their site agreements. That would cover tenants as well as any casual visitors or trespassers.
Whether or not that action would succeed would depend upon the court at the time and what the actual lease stated.
When Bargepole writes "If a lessee, who is a landlord, rents the property to tenant under an AST, he is then granting an exclusive right of possession of the property to that tenant for the period of the tenancy." missing from that is "subject to the terms of the landlord's lease".
A standard tenancy agreement or a sublet will usually have wording along the lines of "The provisions of this tenancy/sublet agreement are subject to the terms and restrictions of the master tenancy/lease agreement dated dd/mm/yy/between XXXXXX landholder and yyyy leaseholder."
As I said earlier, a leaseholder can not confer any rights upon a tenant that is prohibited by the lease and that is why it is imperative that in tenancy parking situations that the lease is made available.0
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