Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: 10shinhan on February 20, 2024, 10:48:01 am
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Still plenty of defence angles:
Do you need to display a permit? Lease appears to say not, but the usual 'reasonable regulation' rule rears its ugly head.
Is it reasonable for a lessee to be required to display a permit? (Probably)
Is it reasonable, if the lessee DOESN'T comply with the requirement to display a permit, for an unknown stranger to the lease to be paid £100 - highly unlikely.
The landlords options, if the lessee fails to display a permit AND the display of a permit is deemed reasonable (by a judge) would be for the landlord, the freeholder, to undertake legal action against the lessee for breach of the lease. This might include damages, or in extreme cases forfeiture of the lease. Under no circumstances would it mean the lessee had to pay some random fellow walking past at the time (ie, a PPC).
Run that defence too.
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Sorry OP, but you cannot just post this and then leave it!
a) the use of the Retained Parts
(b) the management of the Building and the welfare of its occupants. "
Capital letters = defined terms.
So how are Retained Parts and Building defined?
And, again, how were you notified of changes in the form required under your lease and by whom??
Retained Parts: all parts of the building other than the property and the Flats including:
(e)the Parking Space;
"And, again, how were you notified of changes in the form required under your lease and by whom??"
The was a letter sent out by the parking company, and the management company. I'm not sure where to find the changes needed on the lease. But I think I know what you're getting at. They don't have the right to change the lease like this, most likely:
For a change to be made to the terms of the lease, there has to be 75% agreement, with not more than 10% disagreeing.
According to s37 of the Landlord & Tenant Act 1987.
I'm asking the management company when they received the 75% in order for the change to be made.
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Sorry OP, but you cannot just post this and then leave it!
a) the use of the Retained Parts
(b) the management of the Building and the welfare of its occupants. "
Capital letters = defined terms.
So how are Retained Parts and Building defined?
And, again, how were you notified of changes in the form required under your lease and by whom??
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I believe they got my details through the DVLA via the reg plate.
You can check if they did by asking the DVLA to give you the details of all the requests for keeper details made to them - go to their website for info on how to do that.
If they didn't get your details that way, then does PoFA & the NtK remain a "narrow issue" or become an unequivocal loss of the parking companies right to pursue the keeper for the debt?
They mention in the ticket that they requested the details from the DVLA
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I believe they got my details through the DVLA via the reg plate.
You can check if they did by asking the DVLA to give you the details of all the requests for keeper details made to them - go to their website for info on how to do that.
If they didn't get your details that way, then does PoFA & the NtK remain a "narrow issue" or become an unequivocal loss of the parking companies right to pursue the keeper for the debt?
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HCA was quoting what you wrote in your OP
I complained to the management company, explaining I have the right to park there and that I did not want to use a permit, explaining that this is poor practice when you could easily whitelist licence plates. I also mentioned that the lease allows us to use the parking space without having to show a permit. They responded:
"Having reviewed the lease I can confirm, the parking space is a retained part and therefore not included in your demised property. As a leaseholder you have the right to park in the space but must comply with the regulations set out by the landlord which relate to use of the retained parts.
Thanks.
To answer the question, I believe this is the part of the lease the management company was referring to:
"To comply with all variations of these Regulations and all other reasonable and proper regulations made by the Landlord or its agents from time to time in accordance with the principles of good estate management and notified to the Tenant that relate to
(a) the use of the Retained Parts
(b) the management of the Building and the welfare of its occupants. "
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HCA was quoting what you wrote in your OP
I complained to the management company, explaining I have the right to park there and that I did not want to use a permit, explaining that this is poor practice when you could easily whitelist licence plates. I also mentioned that the lease allows us to use the parking space without having to show a permit. They responded:
"Having reviewed the lease I can confirm, the parking space is a retained part and therefore not included in your demised property. As a leaseholder you have the right to park in the space but must comply with the regulations set out by the landlord which relate to use of the retained parts.
Presumably the "regulations" were set out in the signs posted in #3. Have there been any other communications setting out the conditions for parking?
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Agreed.
OP, will you pl get away from the narrow issue of PoFA and answer my questions in #13 e.g. what 'landlord regulations', how conveyed etc. etc?
Sorry I've been away.
What do you mean by landlord regulations?
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Agreed.
OP, will you pl get away from the narrow issue of PoFA and answer my questions in #13 e.g. what 'landlord regulations', how conveyed etc. etc?
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But I don't think there will be a meeting of minds on this point.
With that in mind let's all please focus instead on what might be far more meritorious defence points.
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The operator has chosen not to mention the fact that it is relying on PoFA. It has not said that it can rely on PoFA “subject to all the applicable conditions being met”.
For example, without knowing what is written in the “location” box on the NtK, it could be a location that is ambiguous. In which case, if the fact is raised that the NtK is not PoFA compliant because it does not define the “relevant land”, they could then turn around and just claim that it was not relying on PoFA.
BTW, OP, what does it say in the “location” box on the NtK? Could you enter the contents of that box into Google maps and it comes up with more than one possible location?
Whilst this is an IPC operator, I have little to no faith that the IAS would view the above scenario favourably, unlike a recent POPLA appeal that won on exactly that argument. However, should this ever get to court, it could be a winning argument.
What is written as the “location”?
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IMO, the black and white view being expressed is well wide of the mark and unhelpful to an OP unless there are authorities in support.
None has yet been posted.
PoFA paragraph 9(2)(f) says that the NtK must contain a warning that makes express reference to 'all the applicable conditions under [PoFA]' being met. The NtK does not make any reference to the applicable conditions under PoFA. This failure alone could render the charge unenforceable against the keeper.
The argument is circular because in order for a court to enforce a claim it must be satisfied that the conditions of para. 4 have been met, it is therefore(IMO) tautological to insist that the NTK itself states exactly the words of the legal test which the court itself would apply!
But I don't think there will be a meeting of minds on this point.
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No one is saying that it is certain that it is a winning point in a defence should it reach a court.
Good, although comments like the below could give the distinct impression that you were saying it is certain...
The NtK is not PoFA compliant.[...] However, as long as they do not have the drivers details, if they try a court claim, without having the drivers details, they will lose.
I don't disagree that "substantially compliant" shouldn't, but for many judges, it probably would be, so whilst it could be included in a defence if applicable, we should be clear that it's unlikely to be a strong point.
In the meantime, we should focus on the issues around ownership and the management company etc.
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“Substantially compliant” is not good enough. No one is saying that it is certain that it is a winning point in a defence should it reach a court. As always, one defends on as many points as possible.
In order to pursue a keeper under PoFA, an operator must comply with the strict requirements for keeper liability set out in PoFA. Partial or even substantial compliance is insufficient. The NtK must comply with all the requirements of PoFA Paragraph 9 in order to be effective.
PoFA paragraph 9(2)(f) says that the NtK must contain a warning that makes express reference to 'all the applicable conditions under [PoFA]' being met. The NtK does not make any reference to the applicable conditions under PoFA. This failure alone could render the charge unenforceable against the keeper.
PoFA sets out the conditions that must be followed if they want to hold the keeper liable. We see too many instances where these unregulated companies try to rely on PoFA without “strictly complying” on the necessary wording. “Substantially compliant” without even mentioning that they are relying on the Act should not be acceptable. We have seen companies argue that they are not relying on PoFA after issuing a PoFA compliant NtK and others that try to rely on it without being “strictly compliant”. They can’t have it both ways.
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OP, pl don't make us do all the hard work!!
You posted: The permits were sent by post and the management company told us they were bringing in a PPC.
Prior to which you posted the management company's response (which we haven't seen but which you transposed) which stated:
..you have the right to park in the space but must comply with the regulations set out by the landlord which relate to use of the retained parts.
I asked what regulations and what notice you had received regarding these. You replied as above.
You are an owner. Will you pl see this in those wider terms and not the narrow confines of parking.
Are you prepared to accept such a response from them which fails to consider the matter of your rights under the lease, their responsibilities to YOU in the context of the landlord's responsibilities to YOU and you to them. What next I wonder?
Who are the management company e.g. are they incorporated, if so what's their registered number, are owners represented, how are decisions taken, do you pay a charge for their services and/those for which they're responsible to you on the landlord's behalf etc. etc?
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IMO, the NTK is substantially compliant.
Agreed, at least insofar as any failures that might be identified are small enough that I wouldn't be advising an OP that the parking company "will" lose if they go to court... I'm not sure any of us can operate with that degree of certainty.
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IMO, the NTK is substantially compliant.
@b789 what makes you so certain that it is not compliant?
And OP, how did you obtain a permit i.e. how have 'the regulations set out by the landlord which relate to use of the retained parts.' been brought to your attention?
The permits were sent by post and the management company told us they were bringing in a PPC.
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IMO, the NTK is substantially compliant.
@b789 what makes you so certain that it is not compliant?
And OP, how did you obtain a permit i.e. how have 'the regulations set out by the landlord which relate to use of the retained parts.' been brought to your attention?
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The NtK is not PoFA compliant. Has the driver been identified to the PPC? If not, you can appeal as the registered keeper. Not that that will get these scammers to cancel a certainly the IAS appeal will be rejected. However, as long as they do not have the drivers details, if they try a court claim, without having the drivers details, they will lose.
None of the above removes the possible problems with the lease and supremacy of contract.
I have appealed to the PPC, and of course they rejected the appeal. I believe they got my details through the DVLA via the reg plate.
Are the IAS that bad? They would definitely reject my appeal? I've had success with POPLA in the past or are they very different?
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The NtK is not PoFA compliant. Has the driver been identified to the PPC? If not, you can appeal as the registered keeper. Not that that will get these scammers to cancel a certainly the IAS appeal will be rejected. However, as long as they do not have the drivers details, if they try a court claim, without having the drivers details, they will lose.
None of the above removes the possible problems with the lease and supremacy of contract.
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Sorry, I assumed you were a tenant rather than an owner. However, if the lease mentions parking in the "retained space" and there is no mention of a requirement to display a permit, there could be an argument that the managing agent has amended the lease without adhering to the requirements of the Landlord and Tenant Act.
It will probably require someone with legal training to interpret it precisely as there could be the possibility that mention of the retained area in their "regulation" clause gives them an "out" for this.
Was this a windscreen notice or a postal notice? Can you show us a suitably redacted copy of the Notice to Keeper (NtK) front and back. Leave in all dates. Also, some pictures of the actual signs that contain the terms could be useful.
Yes, I am a leaseholder (owner); sorry, I didn't make that clear.
It was a postal notice. I have attached the pictures of the notice and the signs
[attachment deleted by admin]
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Sorry, I assumed you were a tenant rather than an owner. However, if the lease mentions parking in the "retained space" and there is no mention of a requirement to display a permit, there could be an argument that the managing agent has amended the lease without adhering to the requirements of the Landlord and Tenant Act.
It will probably require someone with legal training to interpret it precisely as there could be the possibility that mention of the retained area in their "regulation" clause gives them an "out" for this.
Was this a windscreen notice or a postal notice? Can you show us a suitably redacted copy of the Notice to Keeper (NtK) front and back. Leave in all dates. Also, some pictures of the actual signs that contain the terms could be useful.
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Do you have access to the head lease or are you referring to your tenancy agreement?
It just says 'lease'; it's in the report on the proposed purchase of the property when I bought the place. Is this what you would call the head lease?
Parking Space: the parking space show in green on plan 2 OR in such area as the Landlord shall from time to time designate.
And is there one shown in green on plan 2?
There is a picture after the end of the document. But no green on it.
There is another picture from the land registry. But I think the green is not related.
[attachment deleted by admin]
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Do you have access to the head lease or are you referring to your tenancy agreement?
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Parking Space: the parking space show in green on plan 2 OR in such area as the Landlord shall from time to time designate.
And is there one shown in green on plan 2?
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Thanks for the response. Sorry I didn't say the parking company. It's Countrywide Parking Management.
"You ay need to find out whether the introduction of the PPC is an alteration to the lease."
This is a good point. I wonder where I can find this information. I have a 15 minute call with www.lease-advice.org tomorrow, I will ask them. Or any where else I can find this information?
At the beginning of the lease it says this about parking:
Parking Space: the parking space show in green on plan 2 OR in such area as the Landlord shall from time to time designate.
There is nothing in here about parking permits or even bringing in a PPC. When I moved into the property we had visitor spaces, they turned them into contractor spaces and now have hired a PPC.
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What does the head lease say about parking? You ay need to find out whether the introduction of the PPC is an alteration to the lease. If it is, and we don't know, then you may have a case against the management company for breach of the Landlord and Tenant Act 1987 Section 37 5(a) or (b). If there is a breach of the Act, then the PPC have no right to form any contract and issue parking charges.
Which PPC?
https://www.legislation.gov.uk/ukpga/1987/31/section/37
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Hi all
I live in a block of flats, and I have an allocated space. Which I have the right to use but I don't own the parking space, it is considered a 'Retained Part' under the lease.
Parking enforcement was brought in last year, but as of recently, I have only just received a ticket (7th Feb), then I received 4 more tickets over the next few days.
The parking company is forcing us to use a paper parking permit, which I was not using at the time, but I have now used to stop the constant tickets I'm getting.
I complained to the management company, explaining I have the right to park there and that I did not want to use a permit, explaining that this is poor practice when you could easily whitelist licence plates. I also mentioned that the lease allows us to use the parking space without having to show a permit. They responded:
"Having reviewed the lease I can confirm, the parking space is a retained part and therefore not included in your demised property. As a leaseholder you have the right to park in the space but must comply with the regulations set out by the landlord which relate to use of the retained parts.
The management company can give instruction for there to be parking management on site, the company that has been instructed operate through the use of permits and not number plates.
I would advise you display your permit to ensure the regulations are followed and tickets are not received.
If the parking company have rejected your appeal then they feel a ticket has been provided in line with the restrictions and you would need to pass any further disputes through their dispute processes, this is not something I can change unfortunately."
I think my management agent is talking about the 'Regulation' section:
"27. To comply with all variations of these regulations and all other reasonable and proper regulations made by the Landlord or its agents from time to time in accordance with the principles of good estate management and notified to the Tenant that relate to:
(a) the use of the Retained Parts
(b) the management of the Building and the welfare of its occupants; and
(c) the use of any Service Media, structures or other items outside the Building that are used or capable of being used by the building in common with other land."
There are a few mentions of parking in the lease, including:
"Use of retained parts
The right for the Tenant and all persons authorised by the tenant: To park a private motor car or private motor cycle belonging to the tenant or its visitor in the Parking space."
How can I choose who is authorised if there is a permit involved?
Please, can you advise?