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  • FIRST POST
    • BreadedScampi
    • By BreadedScampi 3rd May 18, 2:49 PM
    • 25Posts
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    BreadedScampi
    One Parking Solution - Rejected Appeal for parking in my own space
    • #1
    • 3rd May 18, 2:49 PM
    One Parking Solution - Rejected Appeal for parking in my own space 3rd May 18 at 2:49 PM
    A month or so ago I received a parking ticket for parking in my own space. I am the leaseholder of a flat above the parking garage in question, which gives me access to 1 allocated parking space.

    Recently the management company brought on have renewed their contract with One Parking Solution, allowing them to enforce to start enforcing parking spaces. This was to prevent visitors from parking in residents' spaces. I was issued with a parking permit, but had forgotten to display it in time and duly received a parking charge for 100.

    My leasehold agreement states the following under "Rights Granted":
    10. The right for the Lessee to park a single domestic private motor vehicle in the Parking Space numbered [x] and shown edged red on Plan 2 subject to any Estate regulations and subject to the right of the Lessor or Estate Management Company to vary the layout and/or position of the Parking Space as may reasonably be appropriate
    In the Newbies sticky thread, under "Parking in your own space", there was a link to a blog by Parking Prankster who mentioned the idea of "Primacy of Contract".

    The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the lease is the key document. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.
    I would like to use this argument in my appeal to Popla, but am not sure if I can due to that annoying clause in my leasehold agreement quoted above.

    Would subject any Estate regulations give my estate management company the right to force me to display a parking permit, and now pursue me for 100?

    I apologise if this has been covered somewhere, but I can't find anything of relevance to my particular leasehold agreement.

    Thank you all in advance for your help and the great work you do on this forum.

    Edit: Clarified second paragraph
    Last edited by BreadedScampi; 04-05-2018 at 7:25 PM.
Page 2
    • The Deep
    • By The Deep 4th May 18, 8:16 AM
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    The Deep
    Are you sure that you didn't imply that you were the driver? e.g. "I parked" instead of "the driver parked"
    Originally posted by nigelbb
    The identity of the driver hardly matters in own space claims. It is better that the resident represents themselves in court i.m.o.
    Last edited by The Deep; 04-05-2018 at 8:22 AM.
    You never know how far you can go until you go too far.
    • NeilCr
    • By NeilCr 4th May 18, 8:18 AM
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    NeilCr
    That would be great if you could point us to them. I may appear to being negative about the L and T act, but I am wanting to find out how it would apply to parking companies being brought in with no significant affect to service charges. It would be a brilliant aid to our cause, but so far I have been unable to find any wording in the Act that is relevant.

    Examples of where a court has accepted the 75% point would be brilliant. I would further add that I have the utmost respect for Bargepole who has significant legal training and if he is citing the 75% reference in court, then I feel I must have missed something in the Act. It's just that I can't find it and as Bargepole can't be in on every case, it would be of tremendous help on all of these "parking in your own space" cases.

    What we don't want is a "you dirty rat" or "play it again Sam" situations where the actual words were never in the script yet they gained universal acceptance because of constant repetition.
    Originally posted by Guys Dad
    Sorry. I missed out the question about whether my interpretation was right or not of C-M's post

    I agree with you. Concrete examples would be great. I feel like I'm missing something, too.

    I think it might, also, have a knock on effect on other manco/MA decisions

    ETA. You explain it better than I do!
    Last edited by NeilCr; 04-05-2018 at 8:31 AM.
    • nosferatu1001
    • By nosferatu1001 4th May 18, 11:31 AM
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    nosferatu1001
    My understanding of the argumnt goes:@

    1) the right to use the space is granted in the lease
    2) this grant cannot be derogated, certainly not by the MA who isnt even the freeholder, without a lease variation being formally agreed
    3) at this point, the L and T Act requirements would come in

    So first you have toget past 2 - any arguments that they can introduce a regulation which is by itself NOT a lease variation would need to be countered FIRST, so the ONLY option left is that, in order to bring in the PPC it IS a lease vriation and as such the vote was needed.
    • Guys Dad
    • By Guys Dad 4th May 18, 1:44 PM
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    Guys Dad
    Offline, I have been guided by Bargepole to the section of the Act that he thought relevant for his case. It is section 37. I missed the points in this section because of the heading.

    It reads
    Section 37 of the Landlord and Tenant Act 1987:



    37 Application by majority of parties for variation of leases.


    (1) Subject to the following provisions of this section, an application may be made to the appropriate tribunal] in respect of two or more leases for an order varying each of those leases in such manner as is specified in the application.

    (2) Those leases must be long leases of flats under which the landlord is the same person, but they need not be leases of flats which are in the same building, nor leases which are drafted in identical terms.

    (3) The grounds on which an application may be made under this section are that the object to be achieved by the variation cannot be satisfactorily achieved unless all the leases are varied to the same effect.

    (4) An application under this section in respect of any leases may be made by the landlord or any of the tenants under the leases.

    (5) Any such application shall only be made if

    (a) in a case where the application is in respect of less than nine leases, all, or all but one, of the parties concerned consent to it; or

    (b) in a case where the application is in respect of more than eight leases, it is not opposed for any reason by more than 10 per cent. of the total number of the parties concerned and at least 75 per cent. of that number consent to it.

    (6) For the purposes of subsection (5)

    (a) in the case of each lease in respect of which the application is made, the tenant under the lease shall constitute one of the parties concerned (so that in determining the total number of the parties concerned a person who is the tenant under a number of such leases shall be regarded as constituting a corresponding number of the parties concerned); and

    (b) the landlord shall also constitute one of the parties concerned.
    The bit in red is interesting as clearly a PPC could be appointed to manage some of the parking spaces and not all, so any leaseholder should, in some circumstances, argue that an attempt to vary leases under section 37 would fail that condition.

    So the points to argue are that no consultation was made and the MA can not show the results of any ballot and that the introduction of a PPC does need all parking spaces to be patrolled.

    Bargepole also added
    "A couple of points to note on this:

    The legislation only applies to leaseholders on a long lease. It would not apply to tenants who are renting the property from the leaseholder under an AST.

    Also, the application can only be made by the landlord, or by one or more of the leaseholders. It makes no provision for an application by a Managing Agent, although its likely that if the MA was named as one of the parties to the lease, as is often the case, a court might accept that as valid
    ."

    So, regulars, care and caution is needed before quoting L & T Act willy nilly so as not tolead OPs into a minefield without adequate equipment and shields!
    • Coupon-mad
    • By Coupon-mad 4th May 18, 1:46 PM
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    Coupon-mad
    Sorry, just to be clear as I am getting a bit lost here (not difficult!).

    Specifically, there are cases where the L and T Act has been cited in terms of bringing in parking companies. And judges have said that a vote has to be taken on it by lessees/tenants.
    Originally posted by NeilCr
    No, there have not. It's something new I stumbled across when Googling the other month!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • NeilCr
    • By NeilCr 4th May 18, 7:13 PM
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    NeilCr
    Offline, I have been guided by Bargepole to the section of the Act that he thought relevant for his case. It is section 37. I missed the points in this section because of the heading.

    It reads
    Section 37 of the Landlord and Tenant Act 1987:



    37 Application by majority of parties for variation of leases.


    (1) Subject to the following provisions of this section, an application may be made to the appropriate tribunal] in respect of two or more leases for an order varying each of those leases in such manner as is specified in the application.

    (2) Those leases must be long leases of flats under which the landlord is the same person, but they need not be leases of flats which are in the same building, nor leases which are drafted in identical terms.

    (3) The grounds on which an application may be made under this section are that the object to be achieved by the variation cannot be satisfactorily achieved unless all the leases are varied to the same effect.

    (4) An application under this section in respect of any leases may be made by the landlord or any of the tenants under the leases.

    (5) Any such application shall only be made if!!!8212;

    (a) in a case where the application is in respect of less than nine leases, all, or all but one, of the parties concerned consent to it; or

    (b) in a case where the application is in respect of more than eight leases, it is not opposed for any reason by more than 10 per cent. of the total number of the parties concerned and at least 75 per cent. of that number consent to it.

    (6) For the purposes of subsection (5)!!!8212;

    (a) in the case of each lease in respect of which the application is made, the tenant under the lease shall constitute one of the parties concerned (so that in determining the total number of the parties concerned a person who is the tenant under a number of such leases shall be regarded as constituting a corresponding number of the parties concerned); and

    (b) the landlord shall also constitute one of the parties concerned.
    The bit in red is interesting as clearly a PPC could be appointed to manage some of the parking spaces and not all, so any leaseholder should, in some circumstances, argue that an attempt to vary leases under section 37 would fail that condition.

    So the points to argue are that no consultation was made and the MA can not show the results of any ballot and that the introduction of a PPC does need all parking spaces to be patrolled.

    Bargepole also added
    "A couple of points to note on this:

    The legislation only applies to leaseholders on a long lease. It would not apply to tenants who are renting the property from the leaseholder under an AST.

    Also, the application can only be made by the landlord, or by one or more of the leaseholders. It makes no provision for an application by a Managing Agent, although it!!!8217;s likely that if the MA was named as one of the parties to the lease, as is often the case, a court might accept that as valid
    ."

    So, regulars, care and caution is needed before quoting L & T Act willy nilly so as not tolead OPs into a minefield without adequate equipment and shields!
    Originally posted by Guys Dad
    Thanks for this.

    I admit to still being bemused. So can a freeholder/landlord introduce a PPC where there is no change to the service charge - which would effect all residents - without consultation or not,. Taking account of C-M's post that there are no cases where the L and T Act has been used/cited in regard to parking companies. I've got to say that I am surprised that there have been no cases, if the L and T Act should have been applied.

    I have to agree (as I understand it) that posters need to be very careful in suggesting that the L and T Act can be applied to the use of a PPC
    Last edited by NeilCr; 04-05-2018 at 7:29 PM.
    • NeilCr
    • By NeilCr 4th May 18, 8:02 PM
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    NeilCr
    My understanding of the argumnt goes:@

    1) the right to use the space is granted in the lease
    2) this grant cannot be derogated, certainly not by the MA who isnt even the freeholder, without a lease variation being formally agreed
    3) at this point, the L and T Act requirements would come in

    So first you have toget past 2 - any arguments that they can introduce a regulation which is by itself NOT a lease variation would need to be countered FIRST, so the ONLY option left is that, in order to bring in the PPC it IS a lease vriation and as such the vote was needed.
    Originally posted by nosferatu1001
    Why is the introduction of a PPC a lease variation? And have you got any sources to support this assertion.

    I am not being difficult but, as I said, if this should have been happening I am surprised that there are no cases to quote. As per C-M's last post.
    • Coupon-mad
    • By Coupon-mad 7th May 18, 1:54 AM
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    Coupon-mad
    If the lease grants a right to park, then to take that right away or restrict it, or charge for that which was free, is such an onerous change that it can't just be done without formal agreement.

    Derogation from Grant as a concept is explained in Saeed v Plustrade which wasn't about a PPC, but found that taking away parking spaces previously granted (or to charge for them, but that issue was settled before the hearing) infringed on the legal rights of the resident:

    http://www.bailii.org/ew/cases/EWCA/Civ/2001/2011.html

    And here's a recent case about residents with primacy of contract not needing to display a permit, according to a 'property law expert' Judge (might have shown you this one already, sorry):


    D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly.

    Claimant represented by Mr Kennard. Defendant represented by bargepole.

    Relates to this thread: http://forums.moneysavingexpert.com/showthread.php?t=5597961

    The claim had been filed by Gladstones, with the usual sparse particulars. In this case, the parking space was demised as part of the lease of the property, and he had previously informed the managing agents, Crabtree PM, that he was opting out of parking enforcement, which was ignored. He then filed a Part 20 application to have Crabtree joined as co-defendant in the action and there was a counter claim.

    The original claim had been struck out, due to Gladstones failure to file and serve a DQ. So the hearing was supposed to be to hear the counterclaim, for which Gladstones had filed a WS six days late, and which stated that the Claimant had never received a copy of the Defence. It was the usual irrelevant templated rubbish.

    The Judge dealt with the preliminary issues first. Mr D's Part 20 application had never been filed on the correct form, it was simply appended to the counterclaim. Therefore the Managing Agents were not joined to the action.

    Next, although both Claimant and Defendant believed that the original claim had been struck out, there was no copy of any Order stating as such in the court file, or in either the Claimant's or Defendant's bundle. Therefore, the DDJ ruled that the claim would also be heard.

    The DDJ, when not sitting as a Judge, is a barrister specialising in property law. So he quickly identified that the whole case revolved around the fact that the Defendant's wife was the leaseholder, and that the parking space was demised as part of the lease, as proven by Land Registry documents. The managing agents were named as a party to the lease, and there was a clause which said that they could make regulations for the 'comfort and convenience' of lessees.

    However, he did not think this was sufficient to override the terms of the lease granting a parking space. It would be like them stipulating that lessees had to hang a Union Jack out of the window whenever they were at home.

    The claim, having just been reinstated, was therefore dismissed.

    The DPA breach counterclaim had been made by Mr D on the basis that UKCPM had no lawful right to obtain or process his data. But it turned out that he had provided the data himself when he contacted UKCPM after getting the windscreen ticket, and had kept writing to them, and DRP, and Gladstones. So to the embarrassment of his Lay Rep, that element was quickly dismissed.

    With the trespass element, Mr Kennard had argued that only the leaseholder (Mr D's wife) could bring a claim in trespass. Bargepole argued that, by marrying her, he had established a 50% beneficial interest in the lease as a constructive trust. The Judge said it was an interesting line of argument, but not one he could support.

    Therefore, counterclaim dismissed as well.

    No order for costs in either direction.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • NeilCr
    • By NeilCr 7th May 18, 6:30 AM
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    NeilCr
    Thanks C-M

    I really appreciate all your good humoured and informative replies!

    I'll leave it there. FWIW I 100% agree with the comments about being charged for using your own space. I'm seeing it from our point of controlling parking outside of spaces - on the private road. I think that in the case we may not have to consult from what's been said (not that we are thinking of it, at the moment).

    I would agree with Guys Dad that there needs to be careful use of reference to the L and T Act and PPCs

    Again, cheers for all the information
    • BreadedScampi
    • By BreadedScampi 8th May 18, 10:11 AM
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    BreadedScampi
    Thanks for all the replies so far. Assuming the MA are within their rights to 'resume' parking enforcement with One Parking (I don't really want to go to war on that front), do they need to provide me with the specific terms & conditions for the parking rules through my post as well? i.e. "if you don't do exactly as you're told, we're going to charge you 100".

    Yesterday I got another PCN. This time they aren't happy that my permit is displayed on the rear-right window of my car (I don't like restricting my view, and it's still clearly visible). What I find funny is that they took a picture of that exact window to use as evidence in my prior PCN for not displaying a permit.

    I've made an appeal to my management agency to get OPS to cancel all of the parking charges. Because of the stress that this is causing, if they aren't cancelled, I feel like I might look into making a claim against them.
    • nosferatu1001
    • By nosferatu1001 8th May 18, 10:22 AM
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    nosferatu1001
    Thanks C-M

    I really appreciate all your good humoured and informative replies!

    I'll leave it there. FWIW I 100% agree with the comments about being charged for using your own space. I'm seeing it from our point of controlling parking outside of spaces - on the private road. I think that in the case we may not have to consult from what's been said (not that we are thinking of it, at the moment).

    I would agree with Guys Dad that there needs to be careful use of reference to the L and T Act and PPCs

    Again, cheers for all the information
    Originally posted by NeilCr
    Private roads you would also have to be careful of. Depending on the lesae, lessees may have rights over the road as well.

    If there are rights to park vehicles there, and you try to restrict that right, you would likely be derogating from teh grant, something you cannot do unless (as it is property) this is formally agreed. As you would need to vary this in ALL leases (as itt is outside a space) then the L and T Act would likely come into play.
    • NeilCr
    • By NeilCr 8th May 18, 2:05 PM
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    NeilCr
    There is nothing at all in the lease about the private road and rights to park there.

    It wasn't intended for people to park on (as I understand it) - but given the lack of parking on our estate (we have one visitor place for 69 residences) some do. That's okay in one part but the rest of it does not allow for parking because of the width. We have had to put up no parking notices in some places

    Everyone respects those but one person regularly ignored a no parking sign where big vehicles turn (see previous posts if at all interested).
    • BreadedScampi
    • By BreadedScampi 11th May 18, 1:33 PM
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    BreadedScampi
    Does anyone know if there's a way to force debt collectors from sending letters? i.e. Stop sending me letters or take me to court
    • KeithP
    • By KeithP 11th May 18, 1:44 PM
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    KeithP
    Does anyone know if there's a way to force debt collectors from sending letters?
    Originally posted by BreadedScampi
    The only way to do that is to pay them what they are asking for.
    .
    • Umkomaas
    • By Umkomaas 11th May 18, 1:44 PM
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    Umkomaas
    Does anyone know if there's a way to force debt collectors from sending letters? i.e. Stop sending me letters
    They will ignore you. However, and importantly, any contact you make with them, they will realise they are affecting you and will likely single you out for more letter attention, hoping to break you, resulting in you paying them.

    Just ignore the letters, but file and retain, should there be any court proceedings instigated by the PPC (not the debt collectors).

    or take me to court
    Debt collectors can't 'take you to court', they have no cause to do so.
    Last edited by Umkomaas; 11-05-2018 at 1:48 PM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • BreadedScampi
    • By BreadedScampi 10th Jul 18, 5:28 PM
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    BreadedScampi
    So I have received a letter from QDR solicitors (not a letter before claim) making some threat that a claim will be made. So going off the assumption that this will go to court (hopefully won't) I have done some thinking further to my original post.

    While the Management Agency sent me notice of parking enforcement, they didn't send me notice including the exact terms of parking enforcement, and certainly no notice of any potential charges. In my leasehold agreement, parking is granted subject to any Estate Regulations. Surely these regulations would include the exact terms of the parking, with any parking charges, and must be provided to me by post.

    All that I was given in the post was along the lines of "One Parking Solutions are being resumed, here's some stickers, you will be fined if you don't follow [reasons]" but no exact "fine" amount. Obviously private parking companies can't even "fine" you, so was this statement even valid to begin with?

    Could someone possibly clear this up?
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 5:33 PM
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    Coupon-mad
    QDR never make PPC claims, they acting merely as another debt collector (despite being solicitors).

    Search this forum for QDR as your keyword, and you will find it is true!

    All that I was given in the post was along the lines of "One Parking Solutions are being resumed, here's some stickers, you will be fined if you don't follow [reasons]" but no exact "fine" amount. Obviously private parking companies can't even "fine" you, so was this statement even valid to begin with?
    No, and it created no 'relevant obligation' (to display the permit) that gave rise to any parking charge, nor did it point you towards any further t&cs on signage to discover the parking charge sum. So no contract existed to pay a 100 charge.

    Anyway I am helping 5 people in Brighton with OPC threats of court, and over the months none of them have had a claim so I think you can relax for now. It won't be QDR!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • IamEmanresu
    • By IamEmanresu 10th Jul 18, 5:34 PM
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    IamEmanresu
    Could someone possibly clear this up?
    That will be a judge when you are taken to court - and even then that judgment can be checked for accuracy.

    I'm going out on a limb here and suggest you wait for a court claim. I'll go out even further on the limb and say you'll be waiting a long time.
    About me: Capricorn. Likes: Tight defences, the tighter the better. Lucidity. Dislikes: Loquaciousness and magic words. WLTM: Someone with the facts, a private income and their own copy of the White Book.
    • KeithP
    • By KeithP 10th Jul 18, 5:39 PM
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    KeithP
    So I have received a letter from QDR solicitors...
    Originally posted by BreadedScampi
    Have you thought about searching the forum for QDR?

    You will find several posts, some less than a week old, telling you that QDR never start court proceedings.
    .
    • Umkomaas
    • By Umkomaas 10th Jul 18, 5:40 PM
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    Umkomaas
    So going off the assumption that this will go to court
    I'm with IamEmanresu.

    I'm going out on a limb here and suggest you wait for a court claim. I'll go out even further on the limb and say you'll be waiting a long time.
    http://www.parkingappeals.info/companydata/One_Parking_Solution.html
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
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