One Parking Solution - Rejected Appeal for parking in my own space

Guys_Dad wrote: »

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.

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!

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

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’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!

Guys_Dad wrote: »

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!

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

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.