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  • FIRST POST
    • lucere
    • By lucere 9th Aug 18, 3:03 PM
    • 5Posts
    • 5Thanks
    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.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 34. Lost 10.
    • Guys Dad
    • By Guys Dad 11th Aug 18, 5:48 PM
    • 10,505 Posts
    • 9,826 Thanks
    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
    • 5 Posts
    • 5 Thanks
    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.
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