Free Traffic Legal Advice

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?

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.

Do you have access to the head lease or are you referring to your tenancy agreement?

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.

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.

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?

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.

“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.