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Parking Charge - Gladstone’s solicitors
umair290
post Sun, 12 Aug 2018 - 13:45
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Hi


I have been following this forum for a long time great information which has helped me in the past.

Earlier in the year The driver received a parking fine in the car park of block of flats. The driver had just moved into the flat so was moving all my stuff from previous home to this one hence why The driver parked in the car park so He can move all the stuff into the flat. Driver was parked there for roughly 10-15 mins.

Since then received many letters from the private parking firm as you do. (Read some information on this forum and decided to Ignored them all)

Since then received letters from Zenith debt recovery about the fine which was ignored again.

Now after 6 months Driver has received a letter from Gladstone solicitors about the fine and they may take it to court. The parking fine has obviously been increased to £160. On the letter it asks to pay the parking firm
And not Gladstone’s solicitors. Having researched, can see Gladstone’s do take people to court, which Driver wants to avoid.

To make matters worse He received another parking fine from
Same firm in March of this year aswell and same process with that but it hasn’t yet reached the stage of Gladstone’s it’s still zenith debt collectors who are sending letters.

Could you please advice what to do next, there is adequate signage in the car park and enterance to the car park. Parking fine was attached to windscreen and later came by post too. So Driver can’t really see any defence on his part other then Driver was relocating and needed to park inside in order to move stuff from car into house.

Any help would be highly appreciated!

This post has been edited by umair290: Sun, 12 Aug 2018 - 16:36
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post Sun, 12 Aug 2018 - 13:45
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ostell
post Tue, 14 Aug 2018 - 21:03
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5.1 looks good, the right to peaceful enjoyment
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umair290
post Tue, 14 Aug 2018 - 21:15
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QUOTE (ostell @ Tue, 14 Aug 2018 - 22:03) *
5.1 looks good, the right to peaceful enjoyment


Lol how would that be relevant to the fine if it goes court?
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nosferatu1001
post Wed, 15 Aug 2018 - 09:08
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"lol"? Really?

Ha ve you looked into what peaceful enjoyment means?
And that this isnt a fine, and never has been?
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Eljayjay
post Wed, 15 Aug 2018 - 13:12
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I imagine you realise that you have not purchased a parking space or even the right to park in a parking space.

In paragraph 10 of Schedule 2 (Mutual Covenants) you have given an undertaking "Not to park or to suffer or permit to be parked upon any vehicle on the Estate".

I have little doubt that the word "upon" should not be there and I suspect that a judge would construe the paragraph in that way.

You appear, therefore, to be in breach of your lease. It is your own lease and the leases of your fellow leaseholders which govern the behaviour of and the relationships between the parties to the lease. They have primacy of contract over any parking contract entered into by the parking company and the Landlord.

Although, on the face of it, you are in breach of your lease in one of the two cases, Jopson v Homeguard may assist you in the other. So, you need to read and understand the judgement in that case.

In my view, there are some other matters that may assist you.

The first is that a breach of your lease is a matter which should be resolved between the parties to the lease, i.e. the Landlord and yourself, particularly if the lease specifies its own remedy for the breach.

Paragraph 14 of Schedule 2 (Mutual Covenants) does provide the lease's own specific remedy for dealing with a vehicle parked by a Leaseholder who lacks parking rights. It states:-

"If notice of breach is served on the Leaseholder in respect of Paragraphs 10-13 of
this Schedule and such breaches not remedied by the Leaseholder within 14 days
of such notice then the Landlord shall be permitted to remove such vehicle as is
causing the Leaseholder to be in breach of such covenant"

In the event that the Landlord had found it necessary to employ this remedy, the lease would no doubt have entitled the Landlord to recover its true costs from you, but this remedy does not make any provision for the Landlord either directly or through an agent, e.g. the parking company to charge you an arbitrary and exorbitant amount for parking.

The second is that the lease sets out details of the ongoing payments, e.g. ground rent and service charges, due from you. Those payments do not include parking charges.

The third concerns 'privity of contract' rule which exists at common law. The rule states that a contract creates rights and obligations only between the parties to the contract - in the case of your lease between the Landlord and yourself. A third party (e.g. a person, such as the parking company, who is not a party to the contract) neither acquires a right nor any liabilities under the contract.

That situation only changes if the contract contains a clause allowing the third party to enforce a term or some terms of the contract made in accordance with the Contracts (Rights of Third Parties) Act 1999. I cannot find any such clause in your lease.

Consequently, even if the Landlord was able to bill you for parking charges under the lease, a third party, e.g. the parking company, could not enforce the lease's terms.

The 'Quiet enjoyment' clause in your lease may well have played a major part in your defence if you had not breached your lease.

In case this goes to court and none of the above washes with a Judge, you may need to fall back on arguments about, for example, forbidding signs and/or POFA 2012. If you have not already researched these topics, you will find lots of examples in other threads.

In the event that you need to park on the Estate in the future to deliver or remove heavy or awkward loads, I would suggest that you seek permission from the Landlord beforehand.

Serially breaching the terms of your lease is not the way to go.

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umair290
post Fri, 17 Aug 2018 - 11:12
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QUOTE (Eljayjay @ Wed, 15 Aug 2018 - 14:12) *
I imagine you realise that you have not purchased a parking space or even the right to park in a parking space.

In paragraph 10 of Schedule 2 (Mutual Covenants) you have given an undertaking "Not to park or to suffer or permit to be parked upon any vehicle on the Estate".

I have little doubt that the word "upon" should not be there and I suspect that a judge would construe the paragraph in that way.

You appear, therefore, to be in breach of your lease. It is your own lease and the leases of your fellow leaseholders which govern the behaviour of and the relationships between the parties to the lease. They have primacy of contract over any parking contract entered into by the parking company and the Landlord.

Although, on the face of it, you are in breach of your lease in one of the two cases, Jopson v Homeguard may assist you in the other. So, you need to read and understand the judgement in that case.

In my view, there are some other matters that may assist you.

The first is that a breach of your lease is a matter which should be resolved between the parties to the lease, i.e. the Landlord and yourself, particularly if the lease specifies its own remedy for the breach.

Paragraph 14 of Schedule 2 (Mutual Covenants) does provide the lease's own specific remedy for dealing with a vehicle parked by a Leaseholder who lacks parking rights. It states:-

"If notice of breach is served on the Leaseholder in respect of Paragraphs 10-13 of
this Schedule and such breaches not remedied by the Leaseholder within 14 days
of such notice then the Landlord shall be permitted to remove such vehicle as is
causing the Leaseholder to be in breach of such covenant"

In the event that the Landlord had found it necessary to employ this remedy, the lease would no doubt have entitled the Landlord to recover its true costs from you, but this remedy does not make any provision for the Landlord either directly or through an agent, e.g. the parking company to charge you an arbitrary and exorbitant amount for parking.

The second is that the lease sets out details of the ongoing payments, e.g. ground rent and service charges, due from you. Those payments do not include parking charges.

The third concerns 'privity of contract' rule which exists at common law. The rule states that a contract creates rights and obligations only between the parties to the contract - in the case of your lease between the Landlord and yourself. A third party (e.g. a person, such as the parking company, who is not a party to the contract) neither acquires a right nor any liabilities under the contract.

That situation only changes if the contract contains a clause allowing the third party to enforce a term or some terms of the contract made in accordance with the Contracts (Rights of Third Parties) Act 1999. I cannot find any such clause in your lease.

Consequently, even if the Landlord was able to bill you for parking charges under the lease, a third party, e.g. the parking company, could not enforce the lease's terms.

The 'Quiet enjoyment' clause in your lease may well have played a major part in your defence if you had not breached your lease.

In case this goes to court and none of the above washes with a Judge, you may need to fall back on arguments about, for example, forbidding signs and/or POFA 2012. If you have not already researched these topics, you will find lots of examples in other threads.

In the event that you need to park on the Estate in the future to deliver or remove heavy or awkward loads, I would suggest that you seek permission from the Landlord beforehand.

Serially breaching the terms of your lease is not the way to go.


First of all, I just want to thank everyone for taking time out to assist me and others on this forum.

I was away for 2 days hence the late reply. After reading everything you've highlighted, I'm not sure what to do as I can see the judge may give the decision in their favour as I am in breach of contract.

I see a lot of residents in the block who do not have allocated parking spaces, using bays in order to load/unload from their vehicles. Hence why I assumed it would be ok to do so as it was merely for 5-10 minutes and it was in a parking bay which is not allocated to any resident, thus causing no trouble to anyone.

I work 6 days a week extremely long hours and come home late so I don't even have time to prepare thoroughly for the court to put myself in a position to win the case somehow. Thinking whether to just pay it but 2 parking fines and each risen from £60 to £160 is a lot :@

Any suggestions whether to take it court or just deal with it now?

I will read up on the POFA 12 and the case you mentioned above as I'm not familiar with either of those! Again I really appreciate your help and input!

This post has been edited by umair290: Fri, 17 Aug 2018 - 11:13
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nosferatu1001
post Fri, 17 Aug 2018 - 11:22
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I would still go for it.

Loading / Unloading is NOT PARKING. It is something *entirely* different. This is clear to all - for example on a roadway you cannot PARK on DYL, but you CAN load / unload, or board / alight passengers.
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ostell
post Fri, 17 Aug 2018 - 11:42
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Have you read Jopson v Homeguard where the judge found that loading unloading was not parking. This was an appeal so it should set a precedence in your case.
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umair290
post Fri, 17 Aug 2018 - 12:23
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QUOTE (ostell @ Fri, 17 Aug 2018 - 12:42) *
Have you read Jopson v Homeguard where the judge found that loading unloading was not parking. This was an appeal so it should set a precedence in your case.



I havnt yet, but as I mentioned in my previous post I will be looking into it when I get home along with POFA. I saw the parking firms officer last night sneaking in sitting in her car writing fines and then putting it on the car quick 1 sec snap and out so no one notices. I’d say she was on premises for no longer then 3 minutes. How would you know in that time is someone was loading unloading or whatever the case.
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nosferatu1001
post Fri, 17 Aug 2018 - 13:05
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They dont, but they dont care either

You need to make it clear that this is the behaviour. They are required, byt hteir CoP, to allow grace periods. They cannot avoid this duty.
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Eljayjay
post Fri, 17 Aug 2018 - 15:31
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If you have gathered from my long post that you cannot successfully defend the claim, you have misconstrued what I am saying.

I believe you can defend the claim and that I have given you a basis for your statement of defence.

Just in case, however, you need to do some research into other matters which you may wish to include in your defence.
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