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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 2
    • Guys Dad
    • By Guys Dad 11th Aug 18, 1:49 PM
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    Guys Dad
    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.
    Last edited by Guys Dad; 11-08-2018 at 2:09 PM.
    • bargepole
    • By bargepole 11th Aug 18, 2:30 PM
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    bargepole
    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.
    Originally posted by Guys Dad
    Casual visitors or trespassers certainly, because they would have no pre-existing rights over the property.

    But a tenant is not a party to the lease agreement between the leaseholder and the freeholder, and therefore cannot be bound by its terms, unless the tenancy agreement contains a clause or covenant to that effect.

    Look at the Judgment in PACE Recovery v Noor [2016, Croydon County Court, C7GF51J1). District Judge Coonan held that although Mr Noor was a tenant of Affinity Sutton, the PPC notices could not override his rights granted by the tenancy agreement, unless a variation of terms had previously been agreed. Affinity Sutton had relied on an attempt at variation made some years earlier to facilitate the introduction of a different PPC, but it was ruled that because insufficient notice had been given, that document was void, and neither Affinity Sutton nor PACE could rely upon it.

    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 a Graduate 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.
    • Guys Dad
    • By Guys Dad 11th Aug 18, 5:48 PM
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    Guys Dad
    But a tenant is not a party to the lease agreement between the leaseholder and the freeholder, and therefore cannot be bound by its terms, unless the tenancy agreement contains a clause or covenant to that effect..
    Originally posted by bargepole
    I am suggesting that it is more than a possibility that the tenancy agreement may have wording to that effect, but I don't know for sure in this case. However, it seems a prudent inclusion.

    The wording from my previous post in the penultimate paragraph was cribbed from a standard tenancy agreement on a leasehold property available from a number of web sites.

    In a way, a bit academic in this case if the leaseholder is getting involved but just 3 things

    1. lucere - does your tenancy agreement have a similar paragraph? "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."

    2. The Deep - do your sub-lets have similar wording?

    3. If that is in any way standard wording for a tenancy agreement in a flat, then the tenant should ask to see the head lease before signing an agreement that contracts them to conditions that they may not be fully aware of.
    • lucere
    • By lucere 13th Aug 18, 10:36 AM
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    lucere
    lucere - does your tenancy agreement have a similar paragraph? "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."
    Originally posted by Guys Dad
    I've found in the "Definitions and Interpretation":

    1.14 "Head Lease" or "Superior Lease" sets out the promises the Landlord has made to his Superior Landlord (if applicable). The promises contained in the Head Lease will bind the Tenant.

    and Section 4 Superior Lease:

    THE TENANT WILL:
    4.1 Agree to enter into any Agreement, Deed of Covenant or License with the Superior Landlord agreeing to observe and perform the covenants of the Superior Lease if reasonably required to do so

    4.2 Where the Property is subject to a Superior Lease to a Superior Landlord and the Landlord has undertaken to perform the covenants and provisions and agreements set out in the Superior Lease (excluding and payment of ground rent, Rent, or service charge) then the Tenant will comply with the following:

    4.3 To perform the covenants and conditions and provisions and agreements set out in the Superior Lease.


    4.4 To accept that the covenants and conditions and provisions and agreements set out in the Superior Lease may be worded in legal language and that the Tenant has been advised to consider them carefully and if necessary to seek their own advice, for example from a solicitor or a Citizens Advice Bureau or a Law Centre

    4.5 Not do or permit anything to be done which under the terms of the Superior Lease requires the approval of the Superior Landlord without obtaining such approval as well as the approval of the Landlord under this agreement

    4.6 To refer any application for such approval in the first instance to the Landlord under this Agreement or the Landlord's Agent

    4.7 To pay any reasonable costs of the Landlord in considering such an application under clause 4.5 above whether the application is granted, refused or withdrawn

    4.8 To inform the Landlord promptly of any damage destruction or need for repair to prevent deterioration of the Property or the building of which it forms part as soon as it comes to the attention of the Tenant to enable to the Landlord or the Landlord's Agent to inform the Superior Landlord or the Superior Landlord's Agent.

    4.9 Agree that prior to signing this Agreement the Landlord or the Landlord's Agent has given the Tenant a copy of the Superior Lease


    I've bolded the points which I feel are relevant to this thread. But my question now is how does this discussion help me prepare my defence? I was going to use evidence from both documents (starting with the AST), so does it matter which one has primacy?
    • Guys Dad
    • By Guys Dad 13th Aug 18, 10:55 PM
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    Guys Dad
    The head lease is the prime contract. If you have complied with that then you can claim that primacy of contract outweighs any non lease constraints imposed by landowner.

    You have a copy of the superior lease? Any mention of PPCs in it? If not, then that is your major plank.
    • lucere
    • By lucere 28th Aug 18, 10:29 PM
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    lucere
    Hi all,

    I have been away on holiday but am now working on this for the rest of this week. I have a few of questions as well as a first draft of my defence statement:

    1. On MCOL, the claim was issued on 31/07/18, but I've had a notification saying "Date of service of 07/08/2018 notified on 22/08/2018". Does this mean my deadline for defence is a bit further away than I thought, and do weekends count? I thought it was only 5 days between issue and service

    2. Below is my defence draft I've put together using Johnersh's template and bargepole's example above. Any feedback would be greatly appreciated! I am wondering if I need to include an alternative defence (Johnersh's inadequate signage doesn't really apply in my case I think)?

    3. Should I challenge their authority to operate? No evidence provided of a contract chain to landowner / There is no clause in the lease allowing Management Company to make changes to it / I didn't receive any written notification of their "enforcement" beginning

    ----

    IN THE COUNTY COURT BUSINESS CENTRE

    CLAIM No:

    BETWEEN:

    (Claimant)

    -and-

    (Defendant)

    ________________________________________
    DEFENCE STATEMENT
    ________________________________________

    Preliminary
    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of the [Make/Model] with vehicle registration number [xxxx xxx] which is the subject of these proceedings.

    4. It is admitted that at all material times, the Defendant's vehicle was parked at [site name] in the correct allocated bay [bay number and level].

    Authority to Park and Primacy of Contract

    5. Under the terms of the Defendant’s tenancy, a number of references are made to conditions of parking motor vehicles:

    “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.

    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. A copy of the tenancy agreement will be provided to the Court.

    6. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the Superior Lease for [address] (of which the Defendant is bound through Section 4 of the tenancy agreement), which cannot be fettered by any alleged parking terms. The lease terms provide “the exclusive right to park one private motor vehicle on the parking space […] shown and numbered on Plan 1” with no requirement to display a parking permit. A copy of the superior lease will be provided to the Court.

    7. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy and superior lease. 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 or superior lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. – use alternative/more relevant judgments here?

    8. Accordingly it is denied that:
    8.1. there was any valid contract or agreement between the Defendant or and the Claimant
    8.2. there was any obligation (at all) to display a permit; and
    8.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

    10. It is denied that the Claimant has any entitlement to the sums sought.

    STATEMENT OF TRUTH
    The defendant believes that the facts stated in the defence are true.


    Signed:


    Date:
    • Coupon-mad
    • By Coupon-mad 28th Aug 18, 10:38 PM
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    Coupon-mad
    The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. – use alternative/more relevant judgments here?
    No because a defence isn't really the place for case 'law'. You can introduce any cases later, as transcripts in your evidence with your WS.

    I would just change this line, personally:

    8.3. the Claimant has suffered loss or damage or that there is any 'legitimate interest' or other lawful basis to pursue a 'contractual charge' claim for loss. In all respects, the case of Parking Eye Ltd v Beavis [2015] UKSC 67 is distinguished.
    • Le_Kirk
    • By Le_Kirk 29th Aug 18, 9:28 AM
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    Le_Kirk

    ________________________________________
    DEFENCE STATEMENT
    ________________________________________
    Originally posted by lucere
    It is just Defence
    • NeilCr
    • By NeilCr 29th Aug 18, 9:50 AM
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    NeilCr
    Have you had sight of the Superior Lease?
    • lucere
    • By lucere 29th Aug 18, 10:34 AM
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    lucere
    Have you had sight of the Superior Lease?
    Originally posted by NeilCr
    Yes I've had the official copy through from the land registry
    • lucere
    • By lucere 29th Aug 18, 10:38 AM
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    lucere
    No because a defence isn't really the place for case 'law'. You can introduce any cases later, as transcripts in your evidence with your WS.

    I would just change this line, personally:
    Originally posted by Coupon-mad
    It is just Defence
    Originally posted by Le_Kirk
    Thank you both for the suggestions, I've amended as appropriate
    • Loadsofchildren123
    • By Loadsofchildren123 29th Aug 18, 1:30 PM
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    Loadsofchildren123
    On MCOL, the claim was issued on 31/07/18, but I've had a notification saying "Date of service of 07/08/2018 notified on 22/08/2018". Does this mean my deadline for defence is a bit further away than I thought, and do weekends count? I thought it was only 5 days between issue and service

    The 5 days does not include Saturdays, Sundays or Bank holidays. Accordingly, the 5 days ended on 7 August, as recorded on the court file. Your deadlines run from 7 August.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • lucere
    • By lucere 29th Aug 18, 3:42 PM
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    lucere
    Having re-read Link v Blainey I am a little concerned, particularly the judge's point about the right of parking from the lease not being transferred by the tenancy agreement (although this may be more because there is no mention of parking in their AST?).

    Are the parking terms in my tenancy agreement (posted above) strong enough to give me a right to park, even though they do not specify the exact parking space? I guess the crucial point is there is no mention in any document of having to display a permit..

    Following from this, does this clause in my superior lease mean that parking terms cannot be changed? This would be great!

    "7.4 The Company may at any time or times during the Term in the interest of good estate management impose such regulations of general application regarding the Development as it may in its reasonable discretion think fit in addition to or in place of the Regulations (but so that any such regulations shall not conflict with this Lease) and the Company shall have power in its reasonable discretion to revoke amend or add to such regulations or additions thereto"

    As stated previously, the superior lease gives:

    "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 and numbered on Plan 1 which corresponds with the number of the Apartment or such alternative space as may be advised by the Lessor and/or the Management Company in writing from time to time"

    So controlling the rights of residents to park would conflict with the lease, right?

    Sorry for the rambling, this is such a big amount they're trying to rob me of I want to know exactly what I'm talking about!
    • Coupon-mad
    • By Coupon-mad 29th Aug 18, 3:48 PM
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    Coupon-mad
    So controlling the rights of residents to park would conflict with the lease, right?
    Yes. Link v Blaney is a cautionary tale, for various reasons. And it is rare.
    • Loadsofchildren123
    • By Loadsofchildren123 30th Aug 18, 12:49 PM
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    Loadsofchildren123
    "7.4 The Company may at any time or times during the Term in the interest of good estate management impose such regulations of general application regarding the Development as it may in its reasonable discretion think fit in addition to or in place of the Regulations (but so that any such regulations shall not conflict with this Lease) and the Company shall have power in its reasonable discretion to revoke amend or add to such regulations or additions thereto"

    In the lease there will be Regulations and these will be things like where you have to store rubbish, that ball games can't be played in the gardens, that you can't ride horses in the estate, can't have a BBQ in the gardens etc. Somewhere near the beginning there will be a definition of "Regulations" which may or may not help and there will always be a clause allowing new/further Regulations to be introduced. This is that clause.


    You have to look very carefully at the precise wording used and the definition of "Regulations" and any prescribed procedure for introducing new Regulations.


    The PPC will rely on this clause to say that the freeholder/MC or MA was entitled to introduce the new parking regime (requirement for permits) under this clause.


    But you will say it doesn't. Look at its precise wording, I've highlighted in red the bit that helps you. You will say that the requirement for a parking permit is not a regulation of "general application regarding the development". It is not general, it is very specific. "General" would be things like riding horses, dogs off leads, storing rubbish etc.


    Then there is the argument that, even if they were entitled to introduce new parking rules as a new regulation, they are NOT entitled to impose on you a contractual relationship with a third party, nor a charge for failing to comply with a new regulation. I doubt the lease has anything that says that the Freeholder may levy a charge of £100 for any breach of the Regulations and the Leaseholder must pay that charge within x days.


    Your tenancy passes on to you the parking rights enjoyed by your landlord. Those parking rights do not require a permit.


    Please read hairray's thread which will educate you on these issues. There was a more recent thread where after the leaseholder did some digging (he was like a terrier, wouldn't take no for an answer) it turned out that the parking contract contained a clause whereby the MA/MC could demand tickets given to genuine residents be cancelled. I'll link it in a minute.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Loadsofchildren123
    • By Loadsofchildren123 30th Aug 18, 12:50 PM
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    Loadsofchildren123
    https://forums.moneysavingexpert.com/showthread.php?p=74535137#post74535137
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • lucere
    • By lucere 30th Aug 18, 4:24 PM
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    lucere
    My landlord has now given me the direct phone number of the manager for the complex at the Management Company, as he's had no luck convincing him to cancel the tickets – the MC said they can't do anything about it which I refuse to accept. Landlord has suggested I call the MC instead – is this a good idea and what arguments can I put forward?
    • NeilCr
    • By NeilCr 30th Aug 18, 5:43 PM
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    NeilCr
    My landlord has now given me the direct phone number of the manager for the complex at the Management Company, as he's had no luck convincing him to cancel the tickets – the MC said they can't do anything about it which I refuse to accept. Landlord has suggested I call the MC instead – is this a good idea and what arguments can I put forward?
    Originally posted by lucere
    Ask them who is the other party to the contract with the PPC as you wish to speak to someone who has the authority to cancel the ticket from the complex end.

    And, what authority was used to introduce the PPC in the first place.

    It's possible that the Management Company/Managing Agent may not be able to cancel the ticket as they aren't party to the contract. They may well be employed by the freeholder.
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