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  • FIRST POST
    • lucere
    • By lucere 9th Aug 18, 3:03 PM
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    lucere
    Large VCS claim received for residential space
    • #1
    • 9th Aug 18, 3:03 PM
    Large VCS claim received for residential space 9th Aug 18 at 3:03 PM
    Hi all,

    Firstly thank you in advance for any help provided in this thread !!!8211; I can see many people freely offer their time and expertise and that is very kind.

    I received a county claim on 31st July and have done an AoS via MCOL. (I previously ignored the LBC as I was uninformed about the whole thing, oops..!)

    Before I post a draft of my defence, I have a few questions.

    Background
    I rent a flat in a large complex with numbered bays and gated entry, and parked for two years in my allocated space before the site management introduced VCS to police the site. I lost the first permit that was sent to me and it took around 3 months for me to be sent a replacement - during this time (Sept - Dec 2017) I received PCNs for "no permit" on a near daily basis and the claim against me is now around five thousand pounds. (Should I be worried that they will focus more effort and resources on this "big" claim?)

    Tenancy Agreement / Lease
    My principal tenancy agreement was for 6 months from October 2014. Do I need to secure copies of the supplemental agreements (extensions, basically) to prove that I was still resident at the time of the PCNs? I do not still have these supplemental agreements but I assume I can request them from my lettings agent

    This is what the principal tenancy agreement states about parking:

    THE TENANT WILL:
    7.10 To use the car parking space(s) if one forms part of the Tenancy Agreement for the parking of a private vehicle(s) at the Property only.

    7.11 To park in the space allocated to the Property as set out in the Particulars of the Agreement.

    7.12 To park in the garage or driveway to the Property if applicable.

    (7.13 & 7.14, some stuff about cleaning up oil spillages and removing vehicles at end of tenancy)

    7.15 Not to park any vehicle at the Property which is not on a road worthy condition and fully taxed.


    Is it a problem that the AST is so general and non-specific? Nowhere does it actually mention if a space forms part of the tenancy agreement or what number space that is. Should I obtain a copy of the landlord's lease for the property, and do I have time to do this through the Land Registry? (Defence deadline I believe is Sunday 2nd September.) In the property handbook/folder given with the tenancy there is a photocopy of the conveyance plan of the basement car park with handwritten notes and shading added to show which is my "proper allocated space". I'm not sure this could hold up as evidence..?

    I have also found in AST:
    DURING THE TENANCY THE LANDLORD WILL:
    11.3 The Tenant paying the Rent and performing and observing the obligations on the Tenant's part contained in this Agreement shall peaceably hold and enjoy the Property during the Term without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.

    Is this the point that relates to my peaceful enjoyment of my parking space? (If indeed the parking space forms part of the Property in the lease)

    I'd really like to get my evidence for authority to park/primacy of contract nailed down !!!8211; I'm not sure if what I have is enough.

    Obviously I plan to include other sections from template defences !!!8211; can I deny that I was the driver of the vehicle when I am the only named driver on insurance and this was over an extended period of time?

    Should I write to the site management company threatening to involve them in the claim and try and get them to cancel the tickets? They are notoriously unhelpful and inefficient, however, and wouldn't do anything to help me when I initially received the PCNs. I have no idea who the actual Landowner is.

    Any advice on these matters would be greatly appreciated. I will begin drafting my defence
    Last edited by lucere; 09-08-2018 at 3:05 PM. Reason: additions
Page 1
    • Quentin
    • By Quentin 9th Aug 18, 3:14 PM
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    Quentin
    • #2
    • 9th Aug 18, 3:14 PM
    • #2
    • 9th Aug 18, 3:14 PM
    They will definitely focus more effort on a £5k claim than a £175 one!!


    (The court fee they have paid out already for issuing the claim is substantially higher! They won't be getting that back or any other subsequent court fees unless you end up paying them)
    Last edited by Quentin; 09-08-2018 at 3:36 PM.
    • IamEmanresu
    • By IamEmanresu 9th Aug 18, 3:18 PM
    • 3,033 Posts
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    IamEmanresu
    • #3
    • 9th Aug 18, 3:18 PM
    • #3
    • 9th Aug 18, 3:18 PM
    Did you always park in the designated spot?

    Can you get a copy of your landlord's lease either from the landlord, or from another (similar) property or from the Land Registry. For the latter use form OC2 (https://www.gov.uk/government/publications/official-copies-of-documents-registration-oc2) but be warned it may cost £50 ish but you will need it to rebutt VCS.

    Your evening reading is now

    Pace v Noor, VCS v Laird, Link v Parkinson and Link v Blaney. All are relevant.

    The Laird one is the most recent but is a good example of VCS winging it and the defendant not being arsed to do the work. Blaney is similar while the Noor and Parkinson case are examples of the defendants doing the work.

    To win you have to avoid losing first so read the Newbies thread and stick to the timings.
    Last edited by IamEmanresu; 09-08-2018 at 3:26 PM.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Umkomaas
    • By Umkomaas 9th Aug 18, 3:19 PM
    • 18,974 Posts
    • 29,848 Thanks
    Umkomaas
    • #4
    • 9th Aug 18, 3:19 PM
    • #4
    • 9th Aug 18, 3:19 PM
    As you are likely to be making quite a bit of input to this thread over the coming weeks, please switch off the Smart Punctuation on your iOS device to get rid of all the !!!8211; and the like, as every apostrophe and some other punctuations convert to exclamation marks and numbers.

    It will remove anything similar from any future posts you make, but unfortunately copy and pastes of other people's inputs will still carry the fault and will need to be tidied manually.

    Go to 'Settings' > 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

    Switching off seems to have no detrimental affect on any other use of the keyboard.
    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.
    • bargepole
    • By bargepole 9th Aug 18, 3:31 PM
    • 2,355 Posts
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    bargepole
    • #5
    • 9th Aug 18, 3:31 PM
    • #5
    • 9th Aug 18, 3:31 PM
    Obviously I plan to include other sections from template defences. Can I deny that I was the driver of the vehicle when I am the only named driver on insurance and this was over an extended period of time?
    Originally posted by lucere
    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 Defendantís 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.
    .
    2. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy. The erection of the Claimantís 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 have been providing assistance, including Lay Representation at Court hearings (current score: won 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • lucere
    • By lucere 9th Aug 18, 3:36 PM
    • 5 Posts
    • 5 Thanks
    lucere
    • #6
    • 9th Aug 18, 3:36 PM
    • #6
    • 9th Aug 18, 3:36 PM
    Did you always park in the designated spot?
    Originally posted by IamEmanresu
    Yes, I've only ever parked in my designated space in the 4 years I've been here.

    Can you get a copy of your landlord's lease either from the landlord, or from another (similar) property or from the Land Registry.
    I can ask a neighbour who owns their flat to see their lease, but I assume I can't actually use this in my defence? The Land Registry says £7 fee per document for form OC2, will there be multiple documents? I'm happy to pay £7, I'm just concerned about timescales/turnaround..

    Thank you for the reading suggestions!
    • Umkomaas
    • By Umkomaas 9th Aug 18, 3:36 PM
    • 18,974 Posts
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    Umkomaas
    • #7
    • 9th Aug 18, 3:36 PM
    • #7
    • 9th Aug 18, 3:36 PM
    Peer-to-peer confirmation that bargepole is a highly trusted contributor here and most certainly knows exactly what he is talking about.

    Any input from him to your case will be gold dust.
    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.
    • lucere
    • By lucere 9th Aug 18, 5:03 PM
    • 5 Posts
    • 5 Thanks
    lucere
    • #8
    • 9th Aug 18, 5:03 PM
    • #8
    • 9th Aug 18, 5:03 PM
    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 Defendantís 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.
    .
    2. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy. The erection of the Claimantís 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.
    Originally posted by bargepole
    Thank you Bargepole, that's what I thought - and some really helpful paragraphs to get me started. I wish I could just tell them to jog on in my defence though!!

    I've just been in touch with a neighbour in the building and in his signed lease it states:

    1.7 The exclusive right to park one private motor vehicle on the parking space (or each of the spaces as the case may be)(if any) shown edged yellow and numbered on Plan 1 with the number of the Apartment

    The Plan 1 is present with his lease showing the designated space. This sounds like good news to me.. I will get in touch with my landlord to ask if he has his lease and if not get from Land Registry. Together with my tenancy agreement, these seem like very solid pieces of evidence?
    • IamEmanresu
    • By IamEmanresu 10th Aug 18, 6:33 AM
    • 3,033 Posts
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    IamEmanresu
    • #9
    • 10th Aug 18, 6:33 AM
    • #9
    • 10th Aug 18, 6:33 AM
    these seem like very solid pieces of evidence?
    That is exactly what you need.

    In many cases people fail to bring along evidence which support their version of events which leaves judges in the difficult position of having to find against them for want of paperwork. Some judges will bend the rules slightly to help people but you should not rely on telling the judge simply it is "your space". You have to back everything up.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • The Deep
    • By The Deep 10th Aug 18, 7:51 AM
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    The Deep
    Can you involve your landlord?

    If this happened to one of my tenants I would move heaven and earth to get this parasite thrown out, Their actions not only impinge on tenants' legal rights to quiet enjoyment., but could affect rental values. If they are ticketing cars, they may also be committing trespass.
    Last edited by The Deep; 10-08-2018 at 8:43 AM.
    You never know how far you can go until you go too far.
    • The Slithy Tove
    • By The Slithy Tove 10th Aug 18, 8:04 AM
    • 3,360 Posts
    • 4,908 Thanks
    The Slithy Tove
    Take a look at this Residential Parking/VCS thread on Pepipoo:
    http://forums.pepipoo.com/index.php?showtopic=120695
    • nosferatu1001
    • By nosferatu1001 10th Aug 18, 10:36 AM
    • 3,150 Posts
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    nosferatu1001
    Should be the one document - the whole lease is one doc
    Just get the request in now.
    • lucere
    • By lucere 10th Aug 18, 6:48 PM
    • 5 Posts
    • 5 Thanks
    lucere
    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!
    • NeilCr
    • By NeilCr 10th Aug 18, 7:02 PM
    • 2,102 Posts
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    NeilCr
    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.
    Last edited by NeilCr; 10-08-2018 at 7:05 PM.
    • The Deep
    • By The Deep 10th Aug 18, 7:35 PM
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    The Deep
    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.
    Last edited by The Deep; 10-08-2018 at 7:49 PM.
    You never know how far you can go until you go too far.
    • Guys Dad
    • By Guys Dad 11th Aug 18, 7:40 AM
    • 10,509 Posts
    • 9,833 Thanks
    Guys Dad
    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 Defendantís 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.
    .
    2. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy. The erection of the Claimantís 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.
    Originally posted by bargepole
    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.
    • NeilCr
    • By NeilCr 11th Aug 18, 10:23 AM
    • 2,102 Posts
    • 2,774 Thanks
    NeilCr
    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.
    Originally posted by Guys Dad
    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 that
    • bargepole
    • By bargepole 11th Aug 18, 10:52 AM
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    bargepole
    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 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • NeilCr
    • By NeilCr 11th Aug 18, 11:42 AM
    • 2,102 Posts
    • 2,774 Thanks
    NeilCr
    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!
    • The Deep
    • By The Deep 11th Aug 18, 12:05 PM
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    The Deep
    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.
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