PCNs issued on own rented Residential Parking Space |
PCNs issued on own rented Residential Parking Space |
Sat, 15 Sep 2018 - 15:58
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#1
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New Member Group: Members Posts: 9 Joined: 15 Sep 2018 Member No.: 99,898 |
My son received 4 PCNs on consecutive days from VCS for parking in his allocated parking space at the apartment he rents. The PCNs were only seen at the end of the week as he didnt use the car at all during the week. He did actually have a permit in the vehicle but it was only partially displayed.
My sons lease and associated headlease clearly indicates he has a right to the exclusive use of the space. The space allocated can be varied from time to time by the Management Company responsible for the shared areas. We appealed the PCNs on the basis that the primary contract doesn't require the displaying of any permit. The appeal was dismissed by both VCS and the IAS so I now anticipate court action. I intend to fight this as I dont think that they have any legal right to raise a PCN and the concept of counter claiming for Tresspass is something that I am now also considering. (Pearlofwisdom's thread on an identical process has increased my confidence in this area). I am not familiar with the specific court process associated with this matter but hopefully the guidance documents will be reasonably easy to follow. Any support or advice available as I work through this matter will be very much appreciated. Is it wrong to be actually quite looking forward to the fight? |
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Sat, 15 Sep 2018 - 15:58
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Sat, 15 Sep 2018 - 16:15
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#2
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Member Group: Members Posts: 4,167 Joined: 6 Oct 2012 Member No.: 57,558 |
QUOTE Is it wrong to be actually quite looking forward to the fight? No, not at all, they are scum and the managing agents that employ them are either naive or stupid, once the real abusers are scared off by the signs and ticketing the likes of VCS then prey and the proper tenants and leaseholders, it is their only income after all. |
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Sat, 15 Sep 2018 - 18:05
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#3
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I am going to address you as though you are your son, i.e. when I say "you" or "your", I mean "your son" or "your son's".
In readiness for what may come, I need you to post the head lease for your flat and your tenancy agreement (after redacting any personal data) as pdf files. Due to their size, you will almost certainly need to upload them to another website and post links here. I shall happily go through the lease and the tenancy agreement and provide write-ups on them. You may now ignore anything up to a letter of claim/letter before claim/letter before action - they are just different names for the same thing. You must very definitely respond to that - you will ask for lots of information and documents. VCS will almost certainly not be able to provide the information and documents which will demonstrate that they have no right to charge for parking in your parking space. I shall happily draft the response to the letter of claim for you. What may happen next is that you will receive a formal claim through MCOL (Money Claim Online). The first thing to do in response to the formal claim is to acknowledge service of it within 14 days through MCOL (but do not enter anything as your defence at that stage). Acknowledging service gives you a little over a month from the date of claim to submit your defence and your counterclaim (see below). I shall happily draft your defence and counterclaim for you. You will receive a Directions Questionnaire from the Claimant. You will then need to complete your own Directions Questionnaire to give various information to the Court and the Claimant. I shall happily provide some guidance on how to answer the DQ's questions. Following completion of the DQs, your case will almost certainly be allocated to the Court of your choice (as stated on your DQ) or a nearby alternative. The Court will then write to you. Normally, the Court will give you a hearing date and tell you the date (normally two weeks prior to the hearing) by when you must provide your bundle, i.e. witness statement and exhibits (e.g. the head lease, your tenancy agreement, copies of relevant correspondence and so on). Between submitting your bundle and the hearing date, if you wish, you may submit a statement of legal arguments. I shall happily draft your witness statement and statement of legal arguments for you. What VCS may try to do very late in the day is discontinue their claim. That can leave matters hanging over your head. You can avoid being left in limbo by making a counterclaim. By doing so, regardless of what VCS do, the case must be heard. You have obviously been doing some homework and, from what you have said already, I sense that you have a very good chance of not only successfully defending VCS's claim but also winning the counterclaim. But now let us go back to the beginning. You get the lease and tenancy agreement posted and I shall then get reading. Based on what they say, I propose that you then send an email or letter to the Management Company asking them some very difficult questions. I shall gladly draft that letter for you. This post has been edited by Eljayjay: Sat, 15 Sep 2018 - 18:07 |
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Sun, 16 Sep 2018 - 07:44
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#4
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New Member Group: Members Posts: 9 Joined: 15 Sep 2018 Member No.: 99,898 |
Eljayjay
Thank you very much for the synopsis of the process and your assistance. Very much appreciated. I will prepare redacted copies of the leases and correspondence to date (initial appeal to VCS and the subsequent appeal to the IAS). Once I know the size of these documents I will figure out the best way to post these in the thread. Kind Regards. |
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Sun, 16 Sep 2018 - 08:00
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#5
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
Don't post on the thread, post on another picture hosting site (photobucket NOT recommended) and include the link here. If you select the "more options" button at the bottom then there is an option to insert image and give the address of the image.
This post has been edited by ostell: Sun, 16 Sep 2018 - 08:00 |
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Thu, 20 Sep 2018 - 23:37
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#6
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I have drafted the following letter for your son to send to Michael Porter...
Dear Michael, I am the tenant of the leasehold owner of the apartment in which I reside. As a senior property manager and a Member of the Institute of Residential Property Management, you must surely know that, when it comes to a leasehold property, it is the lease which sets out the rights and obligations of all the parties to it. As my landlord’s tenant, my own rights and obligations are derived from my landlord’s lease. The lease is of paramount importance. It has primacy of contract over any other arrangements made by any other arrangements made by any of the parties to it. My landlord’s lease states that one of the rights granted to me is “The exclusive right to park one private motor vehicle on the parking space… shown and numbered on Plan 1…”. My landlord’s lease says nothing about any obligation to display a parking permit. My landlord’s lease also says nothing about any obligation to pay a parking charge. My landlord bought and paid for parking when purchasing the lease. I understand that, in a letter to another resident, you mentioned that “the lease has not varied in regards to the right to park in car park”. That being so, there is still no obligation to display a parking permit and there is still no obligation to pay a parking charge if a parking permit is not displayed. You did, however, also tell the other resident that “the Directors of the Management Company wanted to instruct a parking patrol company to monitor the parking situation”. You then went on to provide the other resident with a copy of the parking contract made between Vehicle Control Services Limited and Great Hampton Street (Quartz) Management Company Limited (the “Company” as it is known in the lease). That contract is fatally-flawed. The Company overstepped its authority by entering into the contract. I have no doubt that the Company is in breach of my landlord’s lease and is responsible for the parking operator trespassing on my landlord’s parking space, which I now rent from him, on a daily basis. Nevertheless, if you truly believe the contract to be valid, please provide me within the next 30 days the following information and documents:- 1. an explanation as to how the Company concluded that it is the “lawful occupier” of the allocated parking space when, although it has an obligation to maintain the space, it has no right to use the space for its sole intended purpose; 2. if the Company believes that my landlord’s lease contains express provision to allow the parking operator to operate a parking scheme on the allocated parking space, a note of the specific clauses in the lease applicable to this situation; 3. if the Company believes that any rules or regulations have been made in accordance with my landlord’s lease’s provisions to allow the parking operator to operate a parking scheme on the allocated parking space:- a. a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and b. a note of the specific clause(s) in the lease in accordance with which those rules or regulations were made; 4. as my landlord’s lease granted an exclusive right to park on the allocated parking space to me as the Lessee, a copy of the instrument which either transferred those individual rights from me to the parking operator or transferred a share of those individual rights from me to the parking operator; 5. if the Company believes that my landlord’s lease’s terms permit third parties, e.g. the parking operator, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note of the specific clause(s) in the lease applicable to this situation; 6. if the Company does not believe that my landlord’s lease’s terms permit third parties, e.g. the parking operator, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note explaining how the Company has concluded that the parking operator has acquired such a right; 7. if the parking operator’s parking scheme has not been introduced in accordance with my landlord’s lease’s provisions, a note explaining how the Company has concluded that its parking contract with the parking operator and the parking operator’s alleged parking contract(s) with driver(s) parking on the allocated parking space have acquired primacy of contract over my landlord’s lease; 8. notes giving details of the due diligence process undertaken by the Company and the parking contractor to ensure that not only the Company’s parking contract with the parking operator but also the purported contract(s) between the parking contractor and driver(s) parking on the allocated parking space met the “Implied term about care and skill” requirement contained in the Supply of Goods and Services Act 1982; 9. a note giving the Company’s explanation as to how the current ticketing and charging regime accords with the legal principle of non-derogation from grant implied in all leases (see below); 10. a note giving the Company’s explanation as to how the current parking regime with its exorbitant parking charges and threats of court action against lessees using their own allocated parking spaces accords with the legal principle of quiet enjoyment implied in all leases; and 11. any other information and documents on which the Company would rely in court in support of its belief that the current parking regime is valid. The purpose of requesting the documents and information requested above is, of course, to narrow the issues between the Company and myself. Naturally, if you provide everything which I seek, I shall reconsider my position. As a senior property manager and a Member of the Institute of Residential Property Management, you should have no difficulty meeting my request. In the event, however, that you do not provide me with the above information and documents within the next 30 days, I am writing to tell you that the Company must instruct the parking operator to cease and desist from using my parking space for the purposes of its business. That will, of course, only cover the future, not the past. For the past, the Company and I will need to enter into negotiations. We shall need to discuss the amount which the Company owes me for allowing its agent, the parking operator, to use my parking space for its business purposes up to the present. I believe a reasonable basis for determining the amount owed to me would be the number of days that the parking operator has been using my parking space for the purposes of its business and the daily cost of using other parking spaces elsewhere locally. Before signing off, I should perhaps offer the following explanation about the long-established legal principle of non-derogation from grant which is implied in every lease. The principle of non-derogation from grant was summarised by Lord Denning, Master of the Rolls (i.e. the Head of Civil Justice), in Molton Builders Ltd v City of Westminster (1975) (30 P&CR 182, at p 186). The broad principle expounded by Lord Denning was that:- “…if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other…”. Lord Denning’s words are particularly apt in many parking cases involving leaseholders with allocated parking spaces. If Lord Denning had been deciding a case between the Company and myself, he may have changed his words to say:- “…if the Company agrees to confer the exclusive right to park in an allocated parking space on the Lessee, the Company must not then enter into an arrangement allowing a parking operator to rent out the space to any Tom, Dick or Harry at an exorbitant charge for the purposes of the parking operator’s business because that would not just substantially deprive, it would entirely deprive the Lessee of the enjoyment of that benefit in two ways: the Lessee, who would have paid a higher purchase price for a property with a parking space, would have been deprived of the exclusive use of that space and he would be treated no differently to Tom, Dick or Harry insofar as the parking operator’s terms are concerned”. It is, of course, perverse that a private car park intended for the exclusive use of residents should be turned into a public car park where, according to the parking operator’s parking scheme, Tom, Dick and Harry can now park on terms no different from those available to that defined group. Has all necessary planning permission been obtained for this change of use? In essence, the notion that the Company could be able to allow a parking operator to use the allocated parking space for the purpose of is business without my consent is as ridiculous as the notion that the Company could be able to allow a property letting agent to rent out my apartment for the purposes of its business. In both situations, I would be substantially deprived of the enjoyment of benefits to which I had a right. I look forward to receiving your reply within the next 30 days. Yours sincerely, |
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Sat, 22 Sep 2018 - 10:52
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#7
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New Member Group: Members Posts: 9 Joined: 15 Sep 2018 Member No.: 99,898 |
Eljayjay
Many thanks for the draft Should I also submit something similiar to VCS as the entity issuing the PCNs ? My argument to them would be that I have tried to resolve matters in a reasonable manner, including following your appeal procedures, and unfortunately this hasn't resolved matter. You still haven't provided me with any evidence of your right to charge me for parking and accordingly in order to resolve this matter I must now write to you directly again on the matter. Would this be a sensible approach or would I just be wasting my time. Thanks |
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Sat, 22 Sep 2018 - 11:32
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#8
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Member Group: Members Posts: 1,901 Joined: 2 Aug 2016 Member No.: 86,040 |
"The lease is of paramount importance. It has primacy of contract over any other arrangements made by any other arrangements made by any of the parties to it."
There seems to be an extra phrase in that? |
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Sat, 22 Sep 2018 - 15:36
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#9
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
Firstly, apologies for the repetition of "any other arrangements made by" pointed out by slapdash (who is obviously a better proof-reader than his name suggests).
Turning to your own post... If your son receives a letter of/before claim/action, then it will be absolutely essential to send something very similar to VCS. For the time being, however, I would leave things with Dear Michael. He may well turn to VCS for advice. What might be a better idea would be to try to get other residents to write similar letters to Dear Michael. I suspect it will be easier to unnerve him than the more hard-nosed owner of VCS who is, I believe, an ex-clamper. |
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Sat, 22 Sep 2018 - 19:04
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#10
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Member Group: Members Posts: 1,901 Joined: 2 Aug 2016 Member No.: 86,040 |
Eljayjay, I wonder if there is any potential merit in proactively bringing a claim for trespass against VCS rather than counter claiming should it proceed to a claim against the OP ?
My thought being it might be easier to get it heard in some sort of property tribunal which could be a better place than the county court. Obviously this is a complete laymans view but it "feels" as though having discovered the misuse one perhaps should be actively trying to stop it. |
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Sat, 22 Sep 2018 - 19:16
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#11
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Member Group: Members Posts: 4,167 Joined: 6 Oct 2012 Member No.: 57,558 |
The counterclaim has the advantage of stopping VCS withdrawing the claim before a hearing when they realise they are going to be beaten.
This post has been edited by kommando: Sat, 22 Sep 2018 - 19:17 |
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Sat, 22 Sep 2018 - 19:31
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#12
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
Slapdash
I agree with kommando about the great advantage of a counterclaim (and a counterclaim is easier to make than a claim). |
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Sat, 22 Sep 2018 - 19:32
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#13
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Member Group: Members Posts: 1,901 Joined: 2 Aug 2016 Member No.: 86,040 |
Yes I realise that. But that only makes VCS accountable for their actions if they issue a claim in the first place.
Though I appreciate that counterclaiming is less onerous. This post has been edited by Slapdash: Sat, 22 Sep 2018 - 19:33 |
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Sat, 22 Sep 2018 - 21:11
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#14
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I hear what you say, but the other thing that comes into play here is the following paragraph:-
“For the past, the Company and I will need to enter into negotiations. We shall need to discuss the amount which the Company owes me for allowing its agent, the parking operator, to use my parking space for its business purposes up to the present. I believe a reasonable basis for determining the amount owed to me would be the number of days that the parking operator has been using my parking space for the purposes of its business and the daily cost of using other parking spaces elsewhere locally.” That paves the way for the original poster’s son to send a letter of claim to the Company and then issue a formal claim if that is what he chooses to do. |
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Mon, 24 Sep 2018 - 08:45
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#15
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
"4. as my landlord’s lease granted an exclusive right to park on the allocated parking space to me as the Lessee, a copy of the instrument which either transferred those individual rights from me to the parking operator or transferred a share of those individual rights from me to the parking operator;"
Erroenous changes to "me" there - should be "Landlord" in all cases. |
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Mon, 24 Sep 2018 - 08:53
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#16
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
Well spotted, nos.
"4. as my landlord’s lease granted an exclusive right to park on the allocated parking space to me as the Lessee, a copy of the instrument which either transferred those individual rights from me to the parking operator or transferred a share of those individual rights from me to the parking operator;" should read "4. as my landlord’s lease granted an exclusive right to park on the allocated parking space to my landlord as the Lessee, a copy of the instrument which either transferred those individual rights from my landlord to the parking operator or transferred a share of those individual rights from my landlord to the parking operator;" mjmkfm - don't worry about that if the letter/email has already been sent. This post has been edited by Eljayjay: Mon, 24 Sep 2018 - 08:54 |
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Tue, 25 Sep 2018 - 20:16
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#17
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New Member Group: Members Posts: 9 Joined: 15 Sep 2018 Member No.: 99,898 |
Thanks all, the letter hasn't gone yet so I can make the changes. Still trying to get the correct address for the management company!
Will hold off on any action with VCS for the moment. |
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Tue, 25 Sep 2018 - 23:47
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#18
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I have asked the other poster at the same development to let you know Dear Michael’s firm’s name and address.
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Fri, 5 Oct 2018 - 16:12
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#19
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New Member Group: Members Posts: 9 Joined: 15 Sep 2018 Member No.: 99,898 |
A letter has now gone to the Management Company and I have now received 4 reminders (Demand for payment) from VCS advising that the matter is now with their debt collection process and they may take my son to court. Interestingly the letter quotes parkingEye Limited v Beavis [2015] yet makes no mention of the case law regarding primacy of contract.
Should I now write to VCS as well or should I just ignore until the letter before court? Mjmkfm |
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Fri, 5 Oct 2018 - 17:39
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#20
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I would wait to see whether Dear Michael replies.
Obviously, if a letter of claim arrives first, do let us know. Just so that I know when the 30 days is up, when did you send the letter? This post has been edited by Eljayjay: Fri, 5 Oct 2018 - 17:39 |
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