PCNs imposed on a legally parked leaseholder

[johnnic]

I have asked this question on The Consumer Action Group forum and received some very useful responses. I am now interested in the views of the members of this forum who may have have a different perspective. I apologise for my verbosity.

We are the owner occupiers (leaseholders) of an apartment in London. Our lease gives us "the exclusive right to park one private motor car in each such parking space..."

The lease also requires us "to comply with all reasonable regulations which the landlord may make and publish in respect of the use of car parking spaces within the Parking Area"

The property manager, acting on behalf of the landlord, has instituted a regulation that requires all cars to display a permit. Failure to display the permit, or (as in our case) displaying a permit which had expired by two weeks, results in a private parking charge being imposed by a private parking company employed by the landlord. Within the lease, there is no specific reference to permits or the use of parking companies to monitor the parking.

We recently received several private parking charges totalling £500 (5 x £100) when we left our vehicle in our authorised car space but without an up-to-date permit as we were out of the country on holidays. During our absence, the requirement for a new permit was advised to all leaseholders through a rote note in our letterboxes (to which we did not have access as we were out of the country). This approach was contrary to previous years when the notification was emailed to all leaseholders.

On our return and in my rush to get this sorted out, I appealed to POPLA only to discover after more extensive reading that I hadn’t really followed the format that they expect. As a result, I didn’t consider it likely that they would uphold my appeal and I (probably incorrectly) agreed to pay the parking company an ‘admin fee’ of £120 on the basis that I would remove my appeal immediately. I am now looking to how this awful situation can be dealt with in the future should a similar situation arise as it most likely will. We spend a great deal of time out of the country with our car parked in its allocated space within the apartment building.

Specifically, I would welcome your views on three issues:

(1)In Davey v UKPC (which I think offers a useful precedent), is it known if Mr Davey was a freeholder or leaseholder of his property? Does it make any difference?


(2)Any suggestions on how we might deal with our recalcitrant property manager?


(3)If we wished to seek recompense from the parking company to whom we paid £120 as their ‘admin fee’, would the Small Claims Court allow this type of claim. I don’t mean would they necessarily award in our favour but would they allow it to be heard under their jurisdiction?

I would welcome all and any advice.

[ostell]

Re: PCNs imposed on a legally parked leaseholder

What was this "admin fee" for, sounds like a bribe to not go to POPLA?

The lease is the master document. If it makes no mention of having to display a permit then there is no need. You may indeed display a permit to aid the parking company weed out strangers parking there but they cannot charge you for right that is already yours to enjoy.

If it happens again just write to them pointing out that your lease overrides any contract that they think they have over your land. Point them to the Davey case

So was the POPLA appeal refused? I'm still not too clear what the "admin fee" was about.

[R0b]

Re: PCNs imposed on a legally parked leaseholder

I can't comment on the PCN side of things, but I'm sure [MENTION=5354]mystery1[/MENTION] can.

As regard to the lease, first and foremost you have an exclusive right to to park your car in one of the spaces, are you allocated one? I guess the second question is whether displaying a permi falls within the compliance with rules and obligations, arguably yes but on the other side of the coin, does the property manager have a list of all residents vehicle registrations who live there?

Are the PCNs relating to a failure to display a parking permit or parking in a space you are not entitled to? If the latter, then of course you have a right to do so and therefore the parking charges wouldn;t be enforceable on that basis. Equally, you could say that the failure to display a permit and coughing up for a PCN contravenes your legal right to park in an allocated space or one of the spaces.

Leasehold or freehold you could argue trespass on either ground if they are not permitted to do so if you so tell the parking company, subject to whether your lease says they can do so on behalf of the Landlord or words to that effect.

The £120 admin fee is the PCN company or the property management company - bit confused!

If its the PCN company then you would need to submit a claim for restitution/duress which would be the jurisdiction as the small claims court is the county court and hears claims up to £25k (I think?). Just means if you instruct lawyers you won't recover your costs so wont be worth it if you do. You could probably claim trespass on the back of that too.

[Kati]

Re: PCNs imposed on a legally parked leaseholder

tagging [MENTION=5354]mystery1[/MENTION] too xx

- - - Updated - - -

beat me to it [MENTION=71570]R0b[/MENTION] xx

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

So was the POPLA appeal refused? I'm still not too clear what the "admin fee" was about.

When we arrived home and found the PCNs (all five of them and all related to the fact that we were displaying an out of date permit) our first step was to speak with the property managers who we thought would simply ring the parking company, explain the situation and request that they cancel the PCN. Wrong! They did contact the parking company and subsequently advised us that the parking company would cancel the PCN if we paid an 'admin fee'. After I had picked myself up from the floor I politely told them that we wouldn't pay the 'fee'.

After several attempts to get our property manager to see reason we realised that they weren't on our side and they would not take any action to get the PCNs cancelled. We immediately appealed to the parking company who, in turn, gave us a negative response. We then appealed to POPLA but before the case was heard we decided to withdraw the appeal and accept the parking company's offer of paying the admin fee (given on the basis that we would withdraw the appeal).

Whilst, in retrospect, this might sound like a ridiculous decision on our part we were very keen to get this resolved before we once again left the country for several months. We were not going to be around to appear before the Small Claims Court should it come to that and we didn't want to be the recipient of continued threatening mail. I do know we could have simply ignored it all but we do not like to have that sort of thing left in abeyance.

I hope this makes it a bit clearer. I welcome your views.

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

I can't comment on the PCN side of things, but I'm sure @mystery1 can.

As regard to the lease, first and foremost you have an exclusive right to to park your car in one of the spaces, are you allocated one? I guess the second question is whether displaying a permi falls within the compliance with rules and obligations, arguably yes but on the other side of the coin, does the property manager have a list of all residents vehicle registrations who live there?

Are the PCNs relating to a failure to display a parking permit or parking in a space you are not entitled to? If the latter, then of course you have a right to do so and therefore the parking charges wouldn;t be enforceable on that basis. Equally, you could say that the failure to display a permit and coughing up for a PCN contravenes your legal right to park in an allocated space or one of the spaces.

Leasehold or freehold you could argue trespass on either ground if they are not permitted to do so if you so tell the parking company, subject to whether your lease says they can do so on behalf of the Landlord or words to that effect.

The £120 admin fee is the PCN company or the property management company - bit confused!

If its the PCN company then you would need to submit a claim for restitution/duress which would be the jurisdiction as the small claims court is the county court and hears claims up to £25k (I think?). Just means if you instruct lawyers you won't recover your costs so wont be worth it if you do. You could probably claim trespass on the back of that too.

Our lease gives us the exclusive right to one parking space. It does not specify a particular space and the arrangements are that we can park anyway on a particular level of the building, within a marked space.

I'm not certain that I fully understand your last paragraph. Are you saying that the Small Claims Court is not the appropriate jurisdiction? To answer your question, it is the parking company that charged the admin fee.

[R0b]

Re: PCNs imposed on a legally parked leaseholder

Apologies, the small claims court would be the correct jurisdiction for your claim.

What's the PCN say about the alleged contravention? Parking on private land or does it say failure to provide a permit or both?

[ostell]

Re: PCNs imposed on a legally parked leaseholder

The small claims court is appropriate for the matter but is very limited on the amount of legal costs you can claim (£50 ?).

That's administration fee is cheeky. Shame you withdrew from POPLA but you will know better the next time.

I think your plan of action is to warn the parking company that they are violating your rights for peaceful enjoyment of your property and any further trespassing on your property will be met with the appropriate legal action. Again pointing them at Davey.

You may find that it is the property managers that are actually doing the ticketing, and taking a percentage. This could explain the reluctance to cancel. Ask for a copy of the contract, as a leaseholder.

This situation arises at very regular intervals on the Pepipoo forums.

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

Apologies, the small claims court would be the correct jurisdiction for your claim.

What's the PCN say about the alleged contravention? Parking on private land or does it say failure to provide a permit or both?

The PCNs (five of them) say different things. One says nothing and the tenor of the remaining four is "failed to clearly display a valid parking permit".

Thanks for your clarification about the correct jurisdiction. Do you think the court will consider this sort of 'debt'? At the end of the day, I was the one who, rather stupidly in retrospect, freely paid them the money.

[R0b]

Re: PCNs imposed on a legally parked leaseholder

I guess it comes down to whether or not they can enforce it under the compliance of rules and obligations in the lease. My gut feeling is that there could be an argument in that however, your legal right to park in a parking space overrides any contractual agreement between the parking company and the property manager.

Do you have to pay for the permit at all? Your lease doesn't stipulate that it is only you that can park (unless you cut that bit out) so the same principle could apply I guess to your friends and family. You have a right to 1 parking space as agreed and I think the requirement to display a parking permit for a space you have a right to is probably flawed legally.

As Ostell has said, does the property managemen person/company have a right to ener into contractual agreements such as a parking company? Could be best to contact the Landlord or request documentation to say that they have authority to do so, especially if they are pocketing a bit on the side!

It wouldn't be a debt, more likely a payment by mistake/duress/deceit.

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

I guess it comes down to whether or not they can enforce it under the compliance of rules and obligations in the lease. My gut feeling is that there could be an argument in that however, your legal right to park in a parking space overrides any contractual agreement between the parking company and the property manager.

Do you have to pay for the permit at all? Your lease doesn't stipulate that it is only you that can park (unless you cut that bit out) so the same principle could apply I guess to your friends and family. You have a right to 1 parking space as agreed and I think the requirement to display a parking permit for a space you have a right to is probably flawed legally.

As Ostell has said, does the property managemen person/company have a right to ener into contractual agreements such as a parking company? Could be best to contact the Landlord or request documentation to say that they have authority to do so, especially if they are pocketing a bit on the side!

It wouldn't be a debt, more likely a payment by mistake/duress/deceit.

Thanks, very informative and useful.

I have set out below, a summary of the responses we have had from the property manager to our requests for them to contact the parking company and have the PCNs cancelled. Whilst it is quite long, it may help better understand their attitude and might point to the best way forward for us. I have removed all references to the name of the apartment building or the property manager.

As I said in an earlier message, whilst we are interested in recovering the monies we paid, our major interest is in taking action to ensure that this cannot happen again.

-------

We have received confirmation from the Parking company that due to the circumstances, they can strike off the 5 Penalty Charge Notices at a cost of £120.

Are you happy to go ahead with this?

______

As I’m sure you are aware the parking at xxxxxx requires a valid permit to be displayed at all times when utilising the area, this is and has always been in place. The permits are also to be renewed on a yearly basis which you are also aware of.

The appointed parking management company is independent to xxx and at NO point does xxx benefit from any revenue from any tickets that are issued.

You may not be aware but it is very difficult with all different regulations in place for Landowners to be able to remove or even clamp vehicles, this results in occupants not being able to utilise the space they are entitled to park in.

We believe there is sufficient signage in the car park area to keep users informed of the parking regulations in place. These regulations are in place to ensure permitted users have the ability to park their vehicle in the permitted areas xxx cannot accept any liability for users of the car park that do not adhere to the parking regulations in place or for any loss or damage within this area.

It is impracticable for the parking management company to provide their wardens with a list of registration numbers that are permitted to park in the area due to the many car parks they visit each day as this is could mean 1000's of registration numbers, this is why we use a permit system.

I would suggest that any further queries with regards to the multiple parking tickets incurred should be taken up with the Parking Company for which I believe you already have the details, but can supply them to you again if required.

_______

It may be that there is a mis-understanding in my response to Margaret. For ease, please see my e-mailed response below dated 21^st May 2016 .

I can confirm that xxx appointed the Parking Management company for the xxxxxx building. They were employed to patrol the car park and to issue PCN’s if our parking regulations were not adhered to.

xxx do not get involved in disputes with regards to Parking fines that were issued, these need to be taken up directly with the Parking Company. The contact details and dispute process will be on the tickets issued or I can ask for these again and send them over if you require.

We previously sent the parking company Margaret’s e-mail for their comments and we issued their response to Margaret on 18/05/16 which stated that in order to have the multiple tickets cancelled there will be an admin fee to pay.

As previously stated, we believe that there is sufficient signage in the car park area to keep users informed of the parking regulations in place. xxx cannot accept any liability for users of the car park that do not adhere to the parking regulations in place or for any loss or damage within this area .

Please also refer to clauses 12 & 13 of the fifth schedule of your lease.

______

All Vehicle owners that have the right to Park a vehicle in the xxxxxx Parking Area have the responsibility to ensure that, when utilising the area they are adhering to the notices and requirements ,as per the signage in the Parking area .

You are entitled to Park a vehicle However you are also asked and have agreed to Comply to the Parking regulations by means of your Lease (Fifth schedule -12 and 13 ) (I have taken a snippet out of the standard Lease at xxxxxx FYI below )

12. To comply with all reasonable regulations which the Landlord may from time to time make and publish for the detailed administration of the Building or for maintaining the character and amenities thereof in relation to the flats and their occupation or the the Building generally.

13. Without prejudice to the generality of clause 12 hereof to comply with all reasonable regulations which the Landlord may from time to time make and publish in respect of the use of car parking spaces within the Parking Area.

With regards to your request of emailing you at the time of renewal ,xxxxx Has already answered this question in the attachment FYI.(the response to Margaret 22/05/16)
We also follow a procedure at xxxxxx where Place Notices across the Building and also post in the Letter boxes at the time of renewal ,We also allow a full month for these to be changed before the expiry date and please also note that there is an expiry date on the Permit itself, it is your responsibility to ensure that you have a Valid permit to be able utilise the Parking Sir .

If the situation should arise where Margaret and Yourself are to be out of the Country again for a time and this falls over the period of Permit renewals ,my advice would be, is to email xxxxxxx@yyyyy and inform them in advance of this –this way this situation can be avoided in the future .

John also see response regarding escalating sent in my previous response please :
I am happy to discuss with you or should you feel that this needs to be escalated feel free to do so in writing via the xxxxxx@yyyyy email.

If you require any further assistance with the Parking Company in clearing the Admin charge for cancelling the fines please do let me know.

________

I have spoken to the Director on this issue and as it stands there will not be a change in the decision that I have noted in my previous emails .

We have addressed all the emails accordingly and feel that should we not have any rules in place with regards to the Parking Area it will be absolute chaos and this would not be beneficial to anyone who has the right to Park a vehicle at xxxxxxx .

The Parking Company has issued you a resolution to have the Tickets cancelled which I believe is still on offer should you want to take this up ,if you require their contact I would be happy to oblige Sir .

The fines will belong to you as your responsibility Sir .

________

[R0b]

Re: PCNs imposed on a legally parked leaseholder

Well, since you don't have a specified parking space its a bit difficult to argue trespess if they have been given authority to do so which would have to come from the Landlord.

They may have a case on that basis to prevent unauthorised people from parking when they shouldn't and that nobody has an allocated parking space. Perhaps that could be something that could be raised?

It all rests I guess on whether or not you the rule to display a parking permit is a regulation under the lease, which as your lease says can only be done by the Landlord, although the Landlord could give authority to the parking company.

If the clause about regulations was not in your lease, this wouldn't be an issue. You could argue that its not unreaosnable for the management company to keep a list of authorised vehicles which they could share with the parking company, or maybe that is unreasonable?

If it went to court, its probably a 50/50 I reckon. But again, requesting evidence form the management company that they have authority to contract will be a starting point and then you could verify with the landlord.

Is it at all possible to have your lease amended so that you have a specified pakring space? Then your issue would really be resolved.

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

Within the lease there are several references to the parking space. The most relevant ones are as follows:

"Parking Area" - means the area(s) within the Building from time to time designated by the Landlord for the parking of private motorcars and within which the Parking Space is to be situated.

"Parking Space" - means the parking space within the Parking Area from time to time to be allocated by the Landlord to the Tenant for parking one private motorcar or motorcycle.

Rights appurtenant to the apartment - the exclusive right to park one private motor car in each such parking space.

Tenants covenant with the Landlord - without prejudice to the generality of the foregoing not to park any vehicle or permit or suffer any vehicle to be parked in any parking space or other area within the Building save for the Parking Space (if any) or any other space or area (if any) which may from time to time be allocated by the Landlord for use by the Tenant.

12. To comply with all reasonable regulations which the Landlord may from time to time make and publish for the detailed administration of the Building or for maintaining the character and amenities thereof in relation to the flats and their occupation or the the Building generally.

13. Without prejudice to the generality of clause 12 hereof to comply with all reasonable regulations which the Landlord may from time to time make and publish in respect of the use of car parking spaces within the Parking Area.

[ostell]

Re: PCNs imposed on a legally parked leaseholder

There can be trespass even if it is not a unique space in that a notice stuck on the car is trespass.

With regard to the requirement to comply with all reasonable regulations I would contest that having to give up control of a right given in your lease to a third party is not reasonable.

Did the management company really say "Penalty Charges" and "Fines"?

[johnnic]

Re: PCNs imposed on a legally parked leaseholder

From our perspective, seeking to get our money back from the parking company is of some interest but is definitely of secondary importance.

My main aim is to convince the property manager that he is incorrect when he says "it is your responsibility to ensure that you have a Valid permit to be able utilise the Parking Sir".

To do that, I intend to argue that:

(a) The whole point of the permit scheme is to prevent the incorrect use of the parking area, not to harass the leaseholders and thereby prevent us from the quiet and peaceful possession of our property.

(b) The charges imposed by the parking company are punitive and unenforceable. The parking charge amount is not a genuine pre-estimate of loss to either the parking company or the landlord.

(c) There is no contract between us and the landlord or us and the parking company whereby we agreed that the parking would be regulated under the parking permit system. There is no reference to the use of parking permits within the lease.

Does this sound reasonable? Is there anything else that I could usefully add?

Thanks for everyone's help on this, it is much appreciated.