3. PCN - Parking in my own space - Not showing permit
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DWMB2

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Re: PCN - Parking in my own space - Not showing permit
« Reply #15 on: February 20, 2024, 08:54:09 pm »
Quote from: b789 on February 20, 2024, 07:42:40 pm
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...
Quote from: b789 on February 20, 2024, 02:26:29 pm
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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H C Andersen

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Re: PCN - Parking in my own space - Not showing permit
« Reply #16 on: February 21, 2024, 08:24:33 am »
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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b789

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Re: PCN - Parking in my own space - Not showing permit
« Reply #17 on: February 21, 2024, 09:30:15 am »
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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DWMB2

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Re: PCN - Parking in my own space - Not showing permit
« Reply #18 on: February 21, 2024, 09:54:36 am »
Quote
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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H C Andersen

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Re: PCN - Parking in my own space - Not showing permit
« Reply #19 on: February 21, 2024, 10:15:26 am »
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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10shinhan

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Re: PCN - Parking in my own space - Not showing permit
« Reply #20 on: March 11, 2024, 11:08:18 pm »
Quote from: H C Andersen on February 21, 2024, 10:15:26 am
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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andy_foster

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Re: PCN - Parking in my own space - Not showing permit
« Reply #21 on: March 12, 2024, 02:38:31 pm »
HCA was quoting what you wrote in your OP

Quote
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?
« Last Edit: March 12, 2024, 02:45:36 pm by andy_foster »
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10shinhan

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Re: PCN - Parking in my own space - Not showing permit
« Reply #22 on: March 12, 2024, 02:43:42 pm »
Quote from: andy_foster on March 12, 2024, 02:38:31 pm
HCA was quoting what you wrote in your OP

Quote
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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guest968

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Re: PCN - Parking in my own space - Not showing permit
« Reply #23 on: March 12, 2024, 05:37:02 pm »
Quote from: 10shinhan on February 20, 2024, 02:55:20 pm
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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10shinhan

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Re: PCN - Parking in my own space - Not showing permit
« Reply #24 on: March 12, 2024, 07:26:58 pm »
Quote from: Scientist and Saint on March 12, 2024, 05:37:02 pm
Quote from: 10shinhan on February 20, 2024, 02:55:20 pm
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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H C Andersen

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Re: PCN - Parking in my own space - Not showing permit
« Reply #25 on: March 13, 2024, 12:04:11 pm »
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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10shinhan

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Re: PCN - Parking in my own space - Not showing permit
« Reply #26 on: March 14, 2024, 08:16:35 am »
Quote from: H C Andersen on March 13, 2024, 12:04:11 pm
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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thevaliant

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Re: PCN - Parking in my own space - Not showing permit
« Reply #27 on: March 21, 2024, 08:01:16 pm »
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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