Sure, thanks.
Gladstones are representing the Claimant.
The particulars of claim are in the first attachment.
The defence is in the second attachment.
The claimant followed up as follows. It was a long response, so I've included only the salient bits (I think):
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18. The Defendant submitted an appeal on the 5th December 2022 the grounds for which were that: he was parked within his parking space and his permit was displayed further, that the landlord had no authority to rent out his parking space and in turn, had no authority to rent the parking space to the Claimant. The appeal was rejected on the basis that the evidence was sufficient to show the permit displayed was no longer valid and thus, the terms and conditions had been breached. (Document 6)
The Defendant seeks to defend the claim on the basis that:
a. The lease for the property grants the exclusive right to use the space as a lessee.
b. The landlord has no residual authority to rent out this space and can pass on no such authority to the Claimant.
c. The Claimant has no authority to rent out the space and no such contract has been formed,
d. The lessee has the authority over the use of the space and does not require the permission of the landlord or the Claimant.
e. As there is no contract, no payment is due.
21. UKCPM submits that the Defence is entirely without merit however, in order to narrow the issues, they respond below.
a. It is accepted that the Defendant is the lessee of the property known as xxx as referred to within the Title Register; however, the register also confirms that only the second floor flat is included within the title. (Document
. Whilst it is accepted that, pursuant to the terms of the lease dated 24th March 2004, (Document 9) the lessee has the right to use of the bay in question, as with the majority of residents at the site who are allocated bays, it remains that the Defendant is neither the owner nor the leaseholder of the said bay.
[Notes by me: The lease itself includes that parking space, and the exclusive use clause in the previous post. CPM is incorrect in saying that the defendant is not the leaseholder of the space]
Pursuant to the terms of the said lease, specifically clause 3.4, the lessee is required to “observe and perform all covenants and stipulations contained or referred to in the Charges Register of the Title so far as the same relate to or affect the Flat or Parking Space and to indemnify the Lessor against all actions proceedings costs claims and demands in respect of any future non-observance or non-performance thereof other than by the Lessor”.
The lease also entitles the landowner at clause 6.4 to “at any time or times during the terms in the interests of good estate management impose such regulations of general application regarding the Estate and Block or the flats and parking spaces therein 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 the lease) and the company shall have the power in its reasonable discretion to revoke amend or add to such regulations or any additions thereto or substitutions thereof”.
On the basis of the above, it is submitted that whilst the Defendant has been allocated a parking bay, the landowner has the right impose regulations in relation to the use and parking of a vehicle within the said bay and that the Defendant is required to comply with any such regulations.
Notwithstanding the above, given that the Defendant had no issues in displaying the permit
provided to him by the previous parking operator instructed to manage parking at the site and
further, that by receiving and accepting a permit provided to him by the Claimant, it is apparent the Defendant had no objections to the parking scheme.
b. Paragraph a) above is repeated.
c. Paragraph a) above is repeated.
d. Paragraph a) above is repeated.
e. Denied. The signage at the Site is the contract; by parking in the manner in which he did, i.e. parking without displaying a valid permit and in turn breaching the terms and conditions of parking, the Defendant accepted liability for the charge.
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The response to this from the defendant was:
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5. The Claimant’s Reply fails to show that they have sufficient authority to offer and enforce a contract in which they provide the use of this parking space in return for the payment of a parking charge.
6. The claim should be denied, as without sufficient authority no contract has been established and no parking charge or related costs are payable.
CLAIMANT’S ASSERTION OF AUTHORITY
7. The Defendant accepts Claimant’s Reply paragraph 9 that there is an agreement between the Claimant and the Landlord setting out the claimant’s standing and rights to act on behalf of the Landlord regarding the management of parking at the site.
8. The Defendant accepts that Claimant’s Reply paragraph 12 forms a unilateral offer to anyone wishing to park their vehicle at the location in exchange for displaying a permit or paying a parking charge.
9. The Defendant disputes Claimant’s Reply paragraph 13, which states that if a driver choose to remain then they agree to a contract for parking. The Defendant already had an unfettered right to use the parking space, was aware that the Claimant had no authority to offer or enforce such a contract, and did not agree to such a contract.
10. The defendant accepts Claimant’s Reply paragraph 18, which outlines the appeal process and outcome.
11. Claimant’s Reply paragraph 18 contained no refutation of the appeal ground that the Claimant had no authority to offer or enforce such a contract.
12. The Claimant has accepted in their Reply paragraph 21a that pursuant to the terms of the lease the Defendant has the right to the use of the parking space in question. However the Claimant failed to acknowledge that this is the right to the exclusive use of this parking space, excluding use by others (Document 9 in Claimant’s Reply, First Schedule, §8).
13. The Claimant has failed to show that the Defendant’s grant of exclusive use of the parking space has been fettered in such a way as to allow the Claimant to offer and enforce a contract for parking in that space.
CHARGES REGISTER
14. The Defendant accepts the statement in Claimant’s Reply in paragraph 21a that the Defendant is required to “observe and perform all covenants and stipulations contained or referred to in the Charges Register of the Title so far as the same relate to or affect the Flat or Parking Space and to indemnify the Lessor against all actions proceedings costs claims and demands in respect of any future non-observance or non-performance thereof other than by the Lessor”.
15. It is insufficient to state that such a covenant or stipulation might be contained in the title. The Claimant must show that there is in fact such a covenant or stipulation.
16. There are no relevant covenants or stipulations contained or referred to in the Charges Register of the Title (Claimant’s Reply Document
.
17. Claimant’s Reply paragraph 21a regarding such covenants and stipulations is therefore not relevant to the Claimant’s purported authority to provide the use of the parking space in return for the payment of a parking charge.
REGULATIONS
18. The Defendant accepts the statement in Claimant’s Reply paragraph 21a that the lease clause 6.4 entitles the Landlord to “at any time or times during the terms in the interests of good estate management impose such regulations of general application regarding the Estate and Block or the flats and parking spaces therein 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 the lease) and the company shall have the power in its reasonable discretion to revoke amend or add to such regulations or any additions thereto or substitutions thereof”.
19. It is insufficient to state that the Landlord could impose a regulation. Instead the claimant must show that the Landlord did in fact impose a regulation that fetters the grant of exclusive use of the space to the Defendant. Such a regulation would need to give the Landlord the power to offer to anyone the use of the parking space in return for the payment of a parking charge.
20. The claimant has failed to provide proof that the Landlord has imposed any such regulation. The agreement between the landlord and the Claimant is not such proof. The parking signs on the estate are not such proof. The Claimant is put to strict proof on this matter.
21. Additionally, the Landlord has confirmed to the Defendant that no regulation regarding parking has been imposed (Document 2).
22. In the absence of such regulation the lease clause granting exclusive use of the parking space to the Defendant remains unfettered.
ACCEPTANCE OF THE PARKING SCHEME
23. The Defendant rejects the statement in the Claimant’s Reply paragraph 11a that displaying a permit from a previous parking scheme and receiving a permit from the Claimant indicates that the Defendant had no objections to the parking scheme. The Defendant displayed the permit out of courtesy and not because there was any requirement to do so or acceptance of the scheme.
SUMMARY
24. The lease grants exclusive use of the space to the Defendant. There is no covenant or stipulation in the Title that fetters this. There is no Regulation imposed under lease clause 6.4 that gives the Landlord the authorisation to offer or enforce a contract for parking in this space.
25. The Claimant has failed to show that they have sufficient authority to establish a contract for the use of this parking space in return for a parking charge. The Claimant has shown evidence of an agreement delegating authority from the Landlord however the Landlord does not have this authority that they can delegate. The authority delegated by the Landlord to the Claimant cannot exceed the authority of the Landlord.
26. As the Landlord and Claimant have no authority to establish a contract for the use of this parking space in return for a parking charge, this claim is completely flawed and the Defendant asks that the claim be dismissed as it is without merit.
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