Large VCS CC claim for my residential space |
Large VCS CC claim for my residential space |
Thu, 30 Aug 2018 - 12:16
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#1
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
Hi guys,
I have been posting on MSE and you can see the original thread here. I can post a copy of my lease and tenancy agreement but they are not searchable unfortunately My defence deadline is on Tuesday and I'm looking for some more feedback on my statement as I believe there are users here that don't use both forums? I have also been reading Pearlofwisdom's recent thread which looks similar. Any comments greatly appreciated! IN THE COUNTY COURT BUSINESS CENTRE CLAIM No: BETWEEN: VEHICLE CONTROL SERVICES LTD (Claimant) -and- (Defendant) ________________________________________ DEFENCE ________________________________________ Preliminary 1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars. 2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. Background 3. It is admitted that, at all material times, the Defendant was the registered keeper of the [make/model] with vehicle registration number [xxxx xxx] which is the subject of these proceedings. 4. It is admitted that, at all material times, the Defendant's vehicle was parked at [site name], in the correct parking space allocated to his apartment [bay detail]. Authority to Park and Primacy of Contract 5. Under the terms of the Defendant’s tenancy, a number of references are made to conditions of parking motor vehicles: “7.10 To use the car parking space(s) if one forms part of the Tenancy Agreement for the parking of a private vehicle(s) at the Property only. 7.11 To park in the space allocated to the Property as set out in the Particulars of the Agreement. 7.12 To park in the garage or driveway to the Property if applicable.” There are no terms within the tenancy requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. A copy of the tenancy agreement will be provided to the Court. 6. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the Superior Lease for [address] (of which the Defendant is bound through Section 4 of his tenancy agreement), which cannot be fettered by any alleged parking terms. The lease terms provide “the exclusive right to park one private motor vehicle on the parking space […] shown and numbered on Plan 1” without the requirement to display a parking permit. A copy of the superior lease will be provided to the Court. 7. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy and superior lease. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the tenancy agreement or superior lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct. 8. Accordingly it is denied that: 8.1. there was any valid contract or agreement between the Defendant or and the Claimant 8.2. there was any obligation (at all) to display a permit; and 8.3. the Claimant has suffered loss or damage or that there is any 'legitimate interest' or other lawful basis to pursue a 'contractual charge' claim. In all respects, the case of Parking Eye Ltd v Beavis [2015] UKSC 67 is distinguished. 9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. 10. It is denied that the Claimant has any entitlement to the sums sought. STATEMENT OF TRUTH The defendant believes that the facts stated in the defence are true. Signed: Date: |
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Thu, 30 Aug 2018 - 12:16
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Thu, 3 Jan 2019 - 16:10
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#41
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Member Group: Members Posts: 2,356 Joined: 30 Jun 2008 From: Landan Member No.: 20,731 |
In reviewing the PPC's argument in 10, I went back and reviewed the earlier disclosures in this thread and on MSE. I believe you've stated that you have an
QUOTE exclusive right to park one private motor vehicle on the parking space (or each of the spaces as the case may be) (if any) shown and numbered on Plan 1 which corresponds with the number of the Apartment or such alternative space as may be advised by the Lessor and/or the Management Company in writing from time to time I haven't seen the entire lease, but are you sure that your parking space is considered part of the flat's "demise", and not an exclusive licence granted in addition to the flat's demise? There would ordinarily be a definition of "demised property" in the head lease--does it specifically refer to the parking space? Even if it doesn't, this wouldn't affect your exclusive right to park there (and thus your defence to the PPC's contract claim), but it could affect the basis of your counterclaim. The reason I mention this is because the wording "or such alternative space as may be advised by the Lessor", etc. is NOT consistent with an "immediate and exclusive" possession of land, which is a requirement for enforcing a trespassing claim against anyone. --Churchmouse |
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Thu, 3 Jan 2019 - 17:24
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#42
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
In reviewing the PPC's argument in 10, I went back and reviewed the earlier disclosures in this thread and on MSE. I believe you've stated that you have an QUOTE exclusive right to park one private motor vehicle on the parking space (or each of the spaces as the case may be) (if any) shown and numbered on Plan 1 which corresponds with the number of the Apartment or such alternative space as may be advised by the Lessor and/or the Management Company in writing from time to time I haven't seen the entire lease, but are you sure that your parking space is considered part of the flat's "demise", and not an exclusive licence granted in addition to the flat's demise? There would ordinarily be a definition of "demised property" in the head lease--does it specifically refer to the parking space? Even if it doesn't, this wouldn't affect your exclusive right to park there (and thus your defence to the PPC's contract claim), but it could affect the basis of your counterclaim. The reason I mention this is because the wording "or such alternative space as may be advised by the Lessor", etc. is NOT consistent with an "immediate and exclusive" possession of land, which is a requirement for enforcing a trespassing claim against anyone. --Churchmouse Thanks Churchmouse. I've made the lease available again here: Lease But I believe the relevant bit is: "2. DEMISE In consideration of the Premium paid by the Lessee to the Lessor (the receipt of which is acknowledged) the Lessor HEREBY DEMISES to the Lessee with full title guarantee the Apartment TOGETHER WITH the rights specified in Part 2 of the First Schedule but EXCEPTING AND RESERVING to the Lessor and the Company and any other person authorised by them the rights specified in the Second Schedule TO HOLD the same to the Lessee from the date hereof for the residue of the Term SUBJECT TO the burden of the covenants or agreements already entered into by the Lessor and the Company with the lessee or tenant of any other Apartment in the Development for the observance of the Regulations PAYING THEREFOR to the Lessor the Annual Rent" The exclusive right to park in my space (which you've quoted above) falls in Part 2 of the First Schedule. I'm not sure if that solves the issue? I'm having a hard time getting my head around that extremely long sentence.. However, are they not interfering with my exclusive right to park in any case? This post has been edited by lucere: Thu, 3 Jan 2019 - 17:36 |
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Thu, 3 Jan 2019 - 19:18
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#43
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
QUOTE The defence was filed with the court but the court order didn't specify them to serve me with their papers. They had to serve you with a copy of their defence to the template counter claim, so of course your WS points out that they did not, and you saw no defence until they have ambushed you with it in 2019 with their Witness Statement. QUOTE I've actually received VCS's bundle already (deadline 10th Jan, hearing 24th) containing: Particulars of Claim (identical to the ones originally served) A copy of my defence A defence to my counterclaim Witness statement (Some funny bits!) 2 sections of "evidence", but nothing particularly worrying at this stage: A copy of contract with my management company (nicely redacted..), site plan, photos of signage, and then all the photos and letters for the alleged "contraventions", along with an example letter containing a permit. I'll try to post a copy of the defence to my counterclaim, VCS' witness statement, and anything else that would be useful in due course - but should I be thinking about their statements when writing my own witness statement? Does the example letter containing a permit, talk about any ''obligation'' to display a permit, and/or any ''contract'' and/or any £100 charge for breach of said 'contract'? You evidence for the counter claim will need to show how you arrived at the figure you are counter-claiming, not just the same evidence as for the main defence points. Hi SchoolRunMum, References are made to "Terms and Conditions" and it says a permit must be displayed. It talks about PCNs but doesn't specify an amount in £. Attached is a photo. I never received this letter with MY permit until a replacement was issued months later. |
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Thu, 3 Jan 2019 - 19:41
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#44
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Member Group: Members Posts: 18,751 Joined: 20 Sep 2009 Member No.: 32,130 |
QUOTE It talks about PCNs but doesn't specify an amount in £. Attached is a photo. Good, I knew it wouldn't have any monetary charge mentioned, they ever do.Even better that you were never issued with this t&cs letter in the first place, so cannot possibly be held to any contractual terms: QUOTE I never received this letter with MY permit until a replacement was issued months later. And in any case, this third party firm is certainly interfering with your lease (your exclusive right to park) and causing a 'private nuisance' affecting your 'amenity' and causing a derogation from grant, which you can argue the courts cannot support against a leaseholder, who undoubtedly has primacy of contract and answers to no third party scum. This post has been edited by SchoolRunMum: Sun, 6 Jan 2019 - 23:46 |
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Fri, 4 Jan 2019 - 15:35
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#45
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
Here is a link to VCS' witness statement and the contract with the management company. I do feel it is odd that they would send me their bundle so far in advance (It was received around Xmas time) when the deadline is 10th Jan.. surely this gives me an advantage? Are they trying to scare me!?
https://www.dropbox.com/s/f02z0px8j05r2nc/V...dacted.pdf?dl=0 Witness statement starts to get interesting around paragraph 82. The missing paragraphs are just a big list of all the "contraventions" which I didn't bother scanning This post has been edited by lucere: Fri, 4 Jan 2019 - 19:02 |
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Fri, 4 Jan 2019 - 16:13
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#46
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Member Group: Members Posts: 17,088 Joined: 8 Mar 2013 Member No.: 60,457 |
I won't download files from another site, especially when I can't see the full files name. I don't know what others feel
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Fri, 4 Jan 2019 - 16:29
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#47
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Member Group: Members Posts: 2,356 Joined: 30 Jun 2008 From: Landan Member No.: 20,731 |
Thanks Churchmouse. I've made the lease available again here: Lease But I believe the relevant bit is: "2. DEMISE In consideration of the Premium paid by the Lessee to the Lessor (the receipt of which is acknowledged) the Lessor HEREBY DEMISES to the Lessee with full title guarantee the Apartment TOGETHER WITH the rights specified in Part 2 of the First Schedule but EXCEPTING AND RESERVING to the Lessor and the Company and any other person authorised by them the rights specified in the Second Schedule TO HOLD the same to the Lessee from the date hereof for the residue of the Term SUBJECT TO the burden of the covenants or agreements already entered into by the Lessor and the Company with the lessee or tenant of any other Apartment in the Development for the observance of the Regulations PAYING THEREFOR to the Lessor the Annual Rent" The exclusive right to park in my space (which you've quoted above) falls in Part 2 of the First Schedule. I'm not sure if that solves the issue? I'm having a hard time getting my head around that extremely long sentence.. However, are they not interfering with my exclusive right to park in any case? The sentence seems fairly clear to me... And my reading of paragraph 1.7 in Part 2 of the First Schedule is that such language does not appear to convey the notion of "exclusive and immediate" possession that would be necessary to support a trespassing claim. A bona fide property lawyer would have a more informed view, of course. Had the paragraph omitted the "or such alternative space as may be advised by the Lessor and/or the Management Company in writing from time to time" qualification, as many leases do, I probably would have come to the opposite conclusion. But as I had mentioned above, that shouldn't affect your defence to the PPC's contract claim, for the reasons noted by SRM, because these arguments are not based on your having "exclusive and immediate possession" of the parking space. --Churchmouse |
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Fri, 4 Jan 2019 - 18:54
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#48
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
I won't download files from another site, especially when I can't see the full files name. I don't know what others feel I can't think of a way to give access to a file other than using another site, given the forum's attachment size limit. Is there more generally accepted method of doing so on this forum? Edit: Here is a Dropbox link containing both documents if that's better https://www.dropbox.com/s/f02z0px8j05r2nc/V...dacted.pdf?dl=0 Thanks Churchmouse. I've made the lease available again here: Lease But I believe the relevant bit is: "2. DEMISE In consideration of the Premium paid by the Lessee to the Lessor (the receipt of which is acknowledged) the Lessor HEREBY DEMISES to the Lessee with full title guarantee the Apartment TOGETHER WITH the rights specified in Part 2 of the First Schedule but EXCEPTING AND RESERVING to the Lessor and the Company and any other person authorised by them the rights specified in the Second Schedule TO HOLD the same to the Lessee from the date hereof for the residue of the Term SUBJECT TO the burden of the covenants or agreements already entered into by the Lessor and the Company with the lessee or tenant of any other Apartment in the Development for the observance of the Regulations PAYING THEREFOR to the Lessor the Annual Rent" The exclusive right to park in my space (which you've quoted above) falls in Part 2 of the First Schedule. I'm not sure if that solves the issue? I'm having a hard time getting my head around that extremely long sentence.. However, are they not interfering with my exclusive right to park in any case? The sentence seems fairly clear to me... And my reading of paragraph 1.7 in Part 2 of the First Schedule is that such language does not appear to convey the notion of "exclusive and immediate" possession that would be necessary to support a trespassing claim. A bona fide property lawyer would have a more informed view, of course. Had the paragraph omitted the "or such alternative space as may be advised by the Lessor and/or the Management Company in writing from time to time" qualification, as many leases do, I probably would have come to the opposite conclusion. But as I had mentioned above, that shouldn't affect your defence to the PPC's contract claim, for the reasons noted by SRM, because these arguments are not based on your having "exclusive and immediate possession" of the parking space. --Churchmouse I'm not too bothered about the success of the counterclaim, as it's main objective was just to take the claim to hearing. But are you advising I discontinue it? My counterclaim did include: "13. Although that amount is based on a counterclaim for trespass alone and the Defendant believes that it would be reasonable for the Court to award a further amount for tortious interference with the Defendant’s tenancy agreement, the Defendant seeks the sum of £1,320 in settlement of the whole of the counterclaim." And certainly they have interfered.. Perhaps a judge would be sympathetic..? Witness statement draft for claim will be up soon This post has been edited by lucere: Fri, 4 Jan 2019 - 19:02 |
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Fri, 4 Jan 2019 - 20:24
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#49
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
Here is a first draft of my witness statement, I have made this a fairly brief as my defence was very lengthy, and the skeleton is still to come. Should I address the fact I didn't respond to the LBC? I wrongly assumed it was just another of their requests for payment.
______________________________________ WITNESS STATEMENT ______________________________________ I, xxx, of xxx am the defendant in this case and will say as follows: I am the registered keeper of the motor vehicle xxx, a blue xx xxxx. I rented Apartment xxx (initially designated Plot xx) in the development known as xxxx, in October 20xx from the superior leaseholder, [name], and have been living there ever since. (See tenancy agreement). On first reading my tenancy agreement, I learned I was entitled to park a vehicle in the space allocated to the property, with no references whatsoever made to parking permits (See tenancy 7.11). An apartment information pack was present in the property which included a conveyance plan of the Lower Basement area, showing the proper allocated parking space, namely Bay xxx. (See ) This is corroborated by the Claimant’s site plan (See ). Bay xxx is where I have always parked my vehicle. The tenancy agreement also stated I was to be bound by the terms of the superior lease (See tenancy 4.3). Upon reading the superior lease, I confirmed that I was granted an an exclusive right to park in the allocated space. (See lease) When I moved into the property there was no company instructed to carry out parking management and I never experienced an issue during this time. Only residents are able to gain entry and exit to the car park areas via the use of a key fob remote to open an electric gate. During a property inspection in xxx, my letting agent informed me that a parking “permit” would be forwarded from the management company, xx, sometime in the future but this did not arrive for whatever reason. I telephoned my letting agent and landlord to enquire about this “permit” and was informed that a replacement would be being posted by xxx. I also left a note in my windscreen as a courtesy to any employee of the Claimant to avoid tortuous interference with the rights contained in my leases. At no time was I, or my landlord, informed of any amendments to the lease. On 1st October 2017 I found a “Parking Charge Notice” affixed to my car. My landlord and I contacted xxx, the property management company, by telephone shortly after the first “PCN” and asked them to cancel the “PCN”s but they refused, explaining they were unable to instruct their agent to do so. The Claimant went to on to affix 48 “PCN”s to my vehicle’s windscreen over a period of three months, and to this day I have received approximately 96 letters demanding payment and threatening potential debt recovery and court proceedings. As a result of this continued harassment, I contacted the Claimant by email on 15th December (See email) to ask what the problem was with the “permit”, as the display of which seemed the only simple way to prevent further harassment, but I received no reply. A new “permit” eventually arrived in December 2017, five months after it was first requested by my landlord and I chose to display it, to end the harassment of notices attached to my vehicle and threatening letters in the post nearly every day. It is my position that, taking into account the evidence of my primacy of contract, the Claimant has no standing, or cause of action, to litigate in this matter. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. Statement of Truth This post has been edited by lucere: Tue, 8 Jan 2019 - 15:55 |
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Sat, 5 Jan 2019 - 12:46
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#50
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Member Group: Members Posts: 2,356 Joined: 30 Jun 2008 From: Landan Member No.: 20,731 |
I'm not too bothered about the success of the counterclaim, as it's main objective was just to take the claim to hearing. But are you advising I discontinue it? My counterclaim did include: "13. Although that amount is based on a counterclaim for trespass alone and the Defendant believes that it would be reasonable for the Court to award a further amount for tortious interference with the Defendant’s tenancy agreement, the Defendant seeks the sum of £1,320 in settlement of the whole of the counterclaim." And certainly they have interfered.. Perhaps a judge would be sympathetic..? Yes, a judge could conceivably ignore the trespassing claim and might still be able to decide in your favour on the tortious interference claim. However, off-hand I don't know if case law would support your tort claim or not. --Churchmouse |
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Sat, 5 Jan 2019 - 15:29
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#51
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Member Group: Members Posts: 18,751 Joined: 20 Sep 2009 Member No.: 32,130 |
I'd give the counter claim a go, as you started it.
As an alternative to trespass you could argue for damages for interference with your amenity, using Kettel v Bloomfold which established that a managing agent/landowner cannot interfere with/force alternatives to the amenity of parking spaces (which were not even demised in that case; they were the subject of an easement). Damages for loss of amenity is something a Judge might listen to. |
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Sun, 6 Jan 2019 - 06:34
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#52
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Member Group: Members Posts: 11,094 Joined: 24 Aug 2007 From: Home alone Member No.: 13,324 |
Copy of the Kettel case below.
Attached File(s)
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Sun, 6 Jan 2019 - 06:55
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#53
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Member Group: Members Posts: 6,898 Joined: 15 Dec 2007 From: South of John O'Groats, north of Cape Town. Member No.: 16,066 |
That case looks as though it will be extremely valuable. But, is it precedent or merely persuasive? It looks to me as though it was the Chancery Division of the High Court and, therefore, could be disagreed if a strong enough case was made??
-------------------- Cabbyman 11 PPCs 0
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Sun, 6 Jan 2019 - 12:54
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#54
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
Thanks for the above advice, I will make sure to put forward this angle in my counterclaim witness statement.
Does anyone have any feedback on my witness statement? I'm planning my skeleton argument now am doing fairly well to discredit the points made in the witness statement. Several mentions of Beavis, however.. would I be right in saying this isn't relevant as my pre-existing rights of parking simply have primacy over their 'terms and conditions'? |
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Sun, 6 Jan 2019 - 23:48
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#55
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Member Group: Members Posts: 18,751 Joined: 20 Sep 2009 Member No.: 32,130 |
QUOTE Should I address the fact I didn't respond to the LBC? I wrongly assumed it was just another of their requests for payment. No need.
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Mon, 7 Jan 2019 - 09:09
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#56
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
I have simply run out of time and can't manage a witness statement for the counterclaim - I've spent too much time making sure my defence of the claim is secure..
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Mon, 7 Jan 2019 - 11:23
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#57
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
The WS for the counterclaim need only be a few lines long
Its only the 7th you have until the 10th. Email to the Claimant and hand delvier to the court. |
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Mon, 7 Jan 2019 - 12:35
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#58
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
The WS for the counterclaim need only be a few lines long Its only the 7th you have until the 10th. Email to the Claimant and hand delvier to the court. I'll have a go, thanks Nos. Would anyone be able to give feedback on this edited witness statement? I'm going a bit crazy as it's such a large amount being claimed WITNESS STATEMENT ______________________________________ I, x of x am the defendant in this case and will say as follows: Background 1. I am the registered keeper of the motor vehicle xxxxxx, a blue . 2. I rented Apartment in the development known as x, in 2014 from its leasehold owner, xx, via an Assured Shorthold Tenancy agreement and have been living there ever since (see . 3. On first reading my tenancy agreement, I learned I was entitled to park a vehicle in the space allocated to the property, with no references whatsoever made to parking permits or paying parking charges (see ). This entitlement cannot unilaterally be altered by a third party, and I believed my rent included the necessary payment for parking. 4. An apartment information pack was also presented to me by my letting agent, which included a conveyance plan of the Lower Basement area showing the allocated parking space, namely Bay xx (see). Consequently, Bay x is where I have always parked my vehicle, in accordance with my entitlement to park. 5. The tenancy agreement also stated I was to be bound by the terms of the superior lease (see). Upon reading the superior lease, I confirmed that I had an exclusive right to park in the allocated space (see ), devolved to me by my landlord. 6. When I moved into the property there was no company instructed to carry out parking management and I never experienced any issue with parking during these first years. As is still the case, only residents are able to gain entry and exit to the car park areas via the use of a key fob remote to open an electric gate. 7. No residents that I have spoken with have complained about problems in the car park other than with the Claimant, some having also been issued “Parking Charge Notices”. Encounters with the Claimant 8. During a property inspection in June 2017, my letting agent informed me that a parking “permit” would be forwarded from my management company, x, sometime in the future but this did not arrive. I telephoned my letting agent and landlord about this “permit” and was advised that a replacement permit was now being sent by [ManCo]. 9. At no time was I, or my landlord, notified of any amendments to the relevant leases relating to a parking permit scheme or having to pay parking charges, and I have seen no evidence of this from the Claimant. 10. On xst x 20xx I found a “Parking Charge Notice” affixed to my car. 11. My landlord and I contacted [ManCo] by telephone shortly after the first “PCN” and asked them to cancel the “PCN”s and refrain from ticketing my vehicle, but they refused, explaining they were unable to instruct their own agent to do so. 12. The Claimant went to on to affix xx “PCN”s to my vehicle’s windscreen over a period of three months, and to this day I have received approximately xx letters demanding payment and threatening potential debt recovery and court proceedings. 13. Another “permit” did finally arrive in xxx 20xxx (See ) and I chose to display it to end the harassment of notices attached to my vehicle and letters in the post nearly every day, not as an acceptance of any alleged contract with the Claimant. Primacy of Contract and Right to Enjoyment 14. The Defendant has contractual rights to enjoyment of his parking space contained in his tenancy agreement and landlord’s lease. The Defendant did not enter into any contract with the Claimant or breach any “Terms and Conditions”. 15. The Defendant’s tenancy agreement allows him to “park in the space allocated to the property” and makes no reference to parking permits or paying parking charges (see). The Defendant wishes to rely on the judgment of District Judge Coonan in Pace Recovery v Mr N C6GF14F0 [2016] that no third party can unilaterally alter the terms of a tenancy agreement that gives authority to park. 16. The landlord’s lease gives an exclusive right to park in the allocated bay, which is devolved to the Defendant through his tenancy agreement. The landlord’s lease makes no reference to parking permits or having to pay parking charges. The Defendant wishes to rely on the judgment in Link Parking v Parkinson C7GF50J7 [2016], where Deputy District Judge Metcalf found that the Link Parking’s scheme interfered with the terms of the defendant’s lease, and that there had been no attempt to amend it. Additionally, on appeal in Jopson v Homeguard B9GF0A9E [2016] Judge Harris found that a parking company was not in any position to override rights detailed in a defendant’s lease. 17. Judgments introduced by the Claimant such as ParkingEye v Beavis [2015] UKSC 67 cannot be applicable to these proceedings as they concern land where the defendants did not have prior authorisation to park from the landowner via a lease, or that permission conferred through a tenancy agreement. No Authority to Operate 18. The Defendant submits that the only party able to authorise the Claimant’s parking scheme would be the landowner (Lessor), as the land is subject to pre-existing terms and conditions through a lease, which have primacy of contract in this matter. The claimant is put to strict proof that they have permission from the genuine landowner to operate and that residents’ leases were amended, with notification. 19. The Claimant suggests their client, the management company Urban Owners, had the power to authorise the Claimant’s parking scheme through a clause in the lease: “The Company may at any time or times during the Term in the interest of good estate management impose such regulations of general application regarding the Development as it may in its reasonable discretion think fit in addition to or in place of the Regulations” (see). 20. However, the lease continues: “(but so that any such regulations shall not conflict with this Lease)”. An exclusive right to park in the allocated space, with no reference to parking permits or charges, is contained explicitly in the lease in First Schedule, Part 2, 1.7.: “The exclusive right to park one private motor vehicle on the parking space […] shown and numbered on Plan 1 which corresponds with the number of the Apartment”. 21. Introducing restrictions or charges on parking would be a clear breach of the principle of non-derogation from grant implied in all leases and outlined in the Defence, as the sums paid by tenant and landlord were inclusive of parking. 22. Further to the above, the Claimant’s parking scheme is not of general application to the development – it is highly specific, consisting of a long list of terms and conditions relevant to each parking space user. Examples of regulations of a general application might be dogs must be on leads, or that no horses are permitted. The scheme is not in the interest of good estate management either, as it serves as a detriment to the residents if they choose not to display a parking permit, and interferes with their right to quiet enjoyment of their parking spaces. 23. Even if [ManCo] were entitled to introduce the Claimant’s parking scheme as a new regulation, they are not entitled to impose a contractual relationship with a third party on the Defendant, nor a charge for failing to comply with a new regulation. 24. It is my position that, given the above, the Claimant has no standing, or cause of action, to litigate in this matter. 25. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14. STATEMENT OF TRUTH I believe the facts stated in this witness are true. Signed: Date: |
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Tue, 8 Jan 2019 - 16:16
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#59
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Member Group: Members Posts: 29 Joined: 30 Aug 2018 Member No.: 99,628 |
I've now secured a witness statement from my landlord to support me
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Wed, 9 Jan 2019 - 07:54
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#60
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Brillliant
Ideally they should attend as well, however it should still be allowed in at least as hearsay. |
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