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PCM LTD issued PCM even though parked in own space, Any advice greatly appreciated.
Peapoduk
post Thu, 26 Apr 2018 - 07:16
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Hello all, a newbie here. Any help and advice would be greatly appreciated.

I know this has probably been covered before but after a bit of reading I am little confused on what my course of action should be whether to ignore or communicate again with them.

I received a PCM last week. The background is that our management housing agency engaged PCM Ltd to manage our parking garage. This was because there was a lot of parking issues with non residents parking in spaces not allocated to them. Access to the parking garage is via key fob but the gate doesn't always close due to some residents messing with it.

We didn't receive a letter from the managing agent only a letter from PCM saying that they had been engaged by the managing agent and permits were given. I've lived here for 5 years and there was no parking permit system until last November.

To be honest I didn't question it as last year my brain was not fully with it, had a really prem baby so I was always coming and going to the hospital.

Anyways sorry I'm dithering I had my permit on my dashboard and when I closed the door it fell off. I didn't notice as I was distracted by my bubba crying. So when I came back to the car I saw the PCM and panicked so immediately like a fool I know appealed and revealed I was the driver. Naively thinking it was an honest mistake as I have rights to my space e.g. it's in my lease and it clearly states my parking space number and no where does it say about a parking permit.

So obviously my appeal was denied and they have said I could appeal to IAS.

Now I know now I should have done my homework and not engaged with them because they would have needed to send me a notice to driver (I think?)

I've been looking on MSE and parking prankster and a lot of what people have said is to ignore now after reading here there is advice I should engage with IAS? On the signs it says the managing agent has no sway on PCM being cancelled.

I'm not sure what to do and with a small bubba my anxiety levels have reached through the roof.

Any advice or help would be so gratefully appreciated.

Best wishes,

Peapoduk

This post has been edited by Peapoduk: Thu, 26 Apr 2018 - 07:26
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post Thu, 26 Apr 2018 - 07:16
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ostell
post Wed, 2 May 2018 - 21:42
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Why the "Without Prejudice" ? You don't understand wht it means do you? If you don't understand then don't put it in!
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Peapoduk
post Wed, 2 May 2018 - 21:54
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Fair point! Will remove it, told you I was a newbie! Thank you.
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nosferatu1001
post Thu, 3 May 2018 - 08:04
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The rule is: dont use legal terms if you dont know what they mean smile.gif

It is lengthy. To be honest I would try to trim some of it down - there is some repetition there, and as you are making a combined cease and desist and essentially LBA against them, I would make the two parts clearer.

You should also add on unlawful access to your data - assuming they got it from the DVLA? - as they had no contract with the landholder, which is YOU - as requred in their KADOE agreement and they never therefore had "reasonable cause" to access your data. Going rate for that is £500.
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Peapoduk
post Thu, 3 May 2018 - 09:40
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QUOTE (nosferatu1001 @ Thu, 3 May 2018 - 09:04) *
The rule is: dont use legal terms if you dont know what they mean smile.gif

It is lengthy. To be honest I would try to trim some of it down - there is some repetition there, and as you are making a combined cease and desist and essentially LBA against them, I would make the two parts clearer.

You should also add on unlawful access to your data - assuming they got it from the DVLA? - as they had no contract with the landholder, which is YOU - as requred in their KADOE agreement and they never therefore had "reasonable cause" to access your data. Going rate for that is £500.


Thanks nosferatu1001, I really appreciate your help. I basically threw everything and the kitchen sink in! I guess again I got a little panicked as I'm am trying to avoid going to court (not a sob story but have three little uns youngest being a premmie) but I know that if I back down these bloody scum suckered will win so will keep at it.

Should I remove the relevant case law, I thought that this would strengthen my case and deter them from coming at me with the Beavis ruling. I'll start removing all the legal jargon that I thought sounded good and I don't quite understand (complete rookie mistake) and try and make it succinct.

Before I shoot myself in the foot, LBA does this mean Letter befofe Action?

Also like a complete naive numpty I divulged my information to them when I used their appeal system. I naively thought they would have integrity. I know now that they are vampires and should have done more research and not panicked. Does this mean the rule about Data protection is null and void or could this come up if they share my data with a debt collector?

I am also a little confused on my lease I'm named as a tenant and the other party the landlord. Should I be referring to myself as the landholder? Paradigm is also the managing agent as I call them when things go wrong with the building.

I think I've done this right and attached below their signage. Is this something I could also use or please tell me I'm trying to add the kitchen sink again.



I think I get the jist of forbidden signs. Is that basically if there is no offer and parking is forbidding then there is no contract. Is this one of these signs?

Again thank you for being so patient and helpful.

Best wishes Peapod
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nosferatu1001
post Thu, 3 May 2018 - 10:15
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AST / lease / rental agreement are all leases. Afixed term allowance to perform someting.
If you pad for the property, you are the landholder as the land is yours ffor the duration. You just dont own the freehold so arent the land*owner*. Its like the distinction between Keepr of a vehicle and its Owner - anyone can be the owner, the keeper is the person in day to day charge.

If ther eis no offer BECAUSE they forbid parking, there can be no *contract*, but that is a secondary argument - the primary one is there cannot EVER be a contratc, because they have nothing of value to *offer* you, ever. You already can park there, so they offer nothing you dont already have - meaning no contract. To be honest, I would NOT argue that in this letter. It distracts.

LBA is leter before action, yet

Includie the references to case law

Beavis required therre to be an agreed contract - here, you say there isnt one, and cannot ever be. So Beavis is simply not applicable. If they argue it s, well then the amount is STILL a penalty, because of all the reasons why your case is different to Beavis - youre the landholder, there is no commercial justifiation, etc. But, again, this is entirely seperate from the primary facet: THIS IS YOUR SPACE. They cannot operate a busines on it without your consent. In fact they are trespassing on your space

If you gave them your data then no, no chance of a DPA claim, ever really. Harassment is possible - Ferguson vs British Gas.
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Eljayjay
post Thu, 3 May 2018 - 11:03
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If you have not done so already, search your lease, AST, rental agreement or whatever the relevant document is called for anything about parking.

That really is the first step when defending a residential parking claim. They are usually very winnable (by, of course, the resident), but you need to do your homework.

So, give the relevant document a good read and post anything relevant.
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Peapoduk
post Tue, 8 May 2018 - 19:36
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Hi all, so sorry its taken me to finally redraft my reply, its been a very stressful week. I've already gone past the 14 days but I don't think that is a problem?

Anyways, please let me know what you think, any advice is greatly appreciated.

I also have attached the clauses I think that may have any relevance for PCM to try and come after me.

Many thanks, Peapoduk

"Parking Charge Notice - xxxxxxx

This letter serves a dual purpose, (hard copy will be sent by post to both landlord and you (Parking Control Management (UK) Ltd) it is a formal challenge to your claim that I am a liable pursuant to a breach of contract to pay you the sum of "£100, but reduced to £60 if paid within 14 days". and to put you on notice that if you continue with this claim then I reserve the right to take all remedies against you as I see fit.

Secondly, to reject the use of your suggested "independent" appeal system 'IAS' (due to your own appeals system being flawed) which is well known to be biased against the appellant, promising to reject at least 85% of appeals and has been exposed in Parliament as compromised by a conflict of interest with the IPC. The BPA were also heavily criticised and both appeals systems were condemned - hardly surprising for an industry where so-called AOS members admitted in recent years to letting victims 'futilely go through the motions' of appeal and saying on camera 'we make it up sometimes' (BBC Watchdog). Instead, I would like to use the Ombudsman service which meets the requirements of the ADR regulations 2015 if needed.

As per above, I deny I am liable for the entirety of this claim for the following reasons:

1. Authority to park and Primacy of Contract:

1.1 On 1st August 2012 I purchased from Paradigm Homes Charitable Housing Association Limited (" the Landlord") (together with my partner) a lease of address XXXXXX and a parking space (referred to below separately "as the Flat", "the Parking Space" and together as "the Property").

1.2 The Leasehold title to the property was registered in our joint names shortly after the completion of the purchase on the 1st August 2012. By virtue of the lease I purchased the leasehold title to the property for a term of 125 years. The Property, as set out above, comprised both the Flat and the Parking Space - the latter was clearly defined in the Lease (see attachment) as part of the demised property and was clearly identified in the plan appended to the lease as shown on page 37, Schedule 3 - Easements and Rights which states the following:

"The right to use the parking space numbered 38 and shown on the plan annexed and labelled 'parking plan' on the hard standing within the Estate"

1.3 Even if the Landlord is permitted to impose such restrictions i.e. the employment of a parking management system, they are not entitled to impose on me a contractual relationship with a third party (you) as written in Clause 14, pg 30. Nor require me to pay a set charge (in this case £60 which has risen inexplicably to £100) for any failure to comply with those new restrictions. If the parking restrictions which the Landlord has sought to introduce do bind me, and if I have breached them, then you have no legal right to pursue me for any breach – that right belongs only to the Landlord.

1.4 Therefore, Parking Control Management (UK) Ltd signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. You do not own the land where the vehicle was parked, nor do you have any interest in the land and lack the capacity to offer parking.

1.5 I also refer you to a number of recent cases that have set clear precedence that my Lease has primacy of contract over any signage that Parking Control Management (UK) Ltd puts up as per judgements in B9GF0A9E Jopson v Homeguard [2016], C6GF14F0 Pace vs Mr N - [2016] and C7GF50J7 Link Parking v Ms P [2016].

1.6 In B9GF0A9E Jopson v Homeguard [2016], the exact question regarding terms in a lease was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats.

1.7 Furthermore, in the case of C7GF51J1 Pace vs Mr N [2016] District Judge Coonan ruled that any amendments to a leaseholder’s covenants regarding parking cannot be amended by a third party, they must be amended into the Lease by the landlord directly, in accordance with the terms set out within the Lease.

1.8 In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’.

1.9 If using the case "The Parking Eye Vs Beavis (2015)" to defend this penalty charge, please note that this ruling refers to a commercial property and therefore irrelevant to this case as this is a residential parking space which is in a gated underground car park accessible only via a remote that is only issued to residents. Therefore this charge is an unenforceable penalty based upon a lack of commercial justification.

1.10 The presence of you, Parking Control Management (UK) Ltd on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests you, Parking Control Management (UK) Ltd were purportedly there to uphold. There is no regulation in our lease that allows the introduction of onerous parking regulations that bring no benefit, nor that allows a predatory parking firm, described in stark terms, to operate a business on our land and parking space.

1.11 The simple notion that a contract can be formed from just displaying a permit is embarrassing and insulting, I have never received any benefit from the "management" of my space and have never agreed to it. For the avoidance of any doubt I only displayed the permit as a courtesy to show the other residents and the landlord that the driver is not a trespasser, however for the foreseeable future myself and my visitors who use my space will not be displaying a permit.

1.12 The rights granted to me are set out in Part I of Schedule 3 to the Lease and are not wholly relevant to this matter, save for clauses 1 and 2 of Part I of Schedule 3 which refer to the tenants right go use the Common Areas of the Building.

1.13 The obligations imposed upon me are largely irrelevant to this matter but I as the landholder must adhere to as defined, set by the Landlord and which are set out in Part I of Schedule 2. These obligations make no mention of any parking restrictions save for clause 3.33 shown on Pg 19 as attached.

1.14 In reference to clauses 4.2, 5.5.2 and 6.4, which refer to the landlord's ability to make reasonable adjustments for the benefit of the residents and maintenance of the building, the introduction of a permit system is not, under any circumstances considered reasonable, it is not for the “use and enjoyment” of residents and it is incompatible with my right to quiet enjoyment of the Property.

Right to claim against harassment:

I must insist that you do not enter onto my space again for any reason. You do not have my authority, nor any lawful reason, to do so and such authority is not in the gift of the Landlord.

In the case of Ferguson Vs British Gas (2009) compensation was paid due to the persistent and threatening contact from British Gas to Ms Ferguson, which was ruled as harassment. Therefore, any further contact or proceedings against me will be considered harassment (including any continued use of my data) unless it is confirmation that this claim has been cancelled. I also reserve the right to raise a counterclaim against you in the below terms;

i. Tortious interference with my rights under the Lease (£100, a sum equivalent to the amount you are currently seeking to recover from me);

ii. Trespass (£100, a sum equivalent to the amount you are currently seeking to recover from me).

iii. Court Fees plus my hourly rate of £19.

Please find a copy of my Lease as evidence against your claim.

Yours faithfully"











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Eljayjay
post Tue, 8 May 2018 - 22:11
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I cannot see any mention of parking in the pages of your lease which you have posted. So, let's start again. Remember, your lease is your greatest friend.

If you can, get your lease scanned as a searchable pdf document - you need something better than the free version of Adobe for this. Then conduct a search for "park". Copy and paste every bit of the lease mentioning "park" into a new document.

Then go through it again to look for anything that makes provision for changes to the lease to be made or for rules and regulations to be added by the landlord and/or the management company. Copy and paste those bits to the new document.

Do the same again but, this time, looking for anything about "rights of third parties". Copy and paste again.

Search for "rent", "charge" and "permit". Copy and paste anything of relevance.

Do not just select extracts which suit your case, copy and paste everything of relevance. The reason for this is that, if the parking operator gets a copy of the lease, you need to figure out how to defend yourself from extracts that they throw at you.

At the same time, do not include extracts which are of no relevance whatsoever, e.g. Party Walls.

On each search, go though the lease from beginning to end.

Post what you find.

This post has been edited by Eljayjay: Tue, 8 May 2018 - 22:13
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nosferatu1001
post Wed, 9 May 2018 - 07:51
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Elijay - here they have leasehold over the specific page, so that would be the page I get hold of. There is no need to mention parking when the space itself is demised.
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Peapoduk
post Wed, 9 May 2018 - 10:12
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Thank you Elijay and nosferatu1001.

I have tried to find a way to make the pdf searchable, running into a few issues but I managed to convert it to a word document, not sure it converted it well but from what I have tried to search for and read.

The only mention of Parking Permits relates to the following:

"The Tenant acknowledges that s/he will not be entitled to a resident's parking permit or visitor's parking permit to allow the parking of a motor car within the Controlled Parking Zone operating within the locality of the Estate SAVE THAT if s/he is or becomes entitled to be a holder of a Disabled Persons Badge (a right which must be proven to the satisfaction of the Mayor and Burgesses of the London Borough of ()), then s/he will be entitled to a Resident's parking permit"

In relation to Third Parties this is what is said in the lease.

"For the purpose of the Contract (Rights of Third Parties) Act (1999) no one other than the parties to the Lease and their permitted assigns has the right to enforce the terms of this Lease"

The pictures I posted before are the clauses that I feel are relevant to changes to lease or services that could be brought in by the landlord, although these mainly pertain to the upkeep and management of the service areas and common areas but must be reasonable and not intrude on the tenant.

In terms of my letter is it better than what I posted before? I tried to be more succinct and remove any waffle. Is there anything else I should add?

@nosferatu1001 is there a specific page of my lease I should post here? I've gone through my lease and nothing it in says anything about permits etc.

Many thanks and best wishes, Peapoduk

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nosferatu1001
post Wed, 9 May 2018 - 10:25
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I did not mention permits at all.
I said, the bit that states the space is demised to you, including the plan, is best. Once demised there need be no further info about parking - as you have a space, its yours. End of.
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Peapoduk
post Wed, 9 May 2018 - 10:40
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QUOTE (nosferatu1001 @ Wed, 9 May 2018 - 11:25) *
I did not mention permits at all.
I said, the bit that states the space is demised to you, including the plan, is best. Once demised there need be no further info about parking - as you have a space, its yours. End of.


Ah got you! Have added the picture below. I think in my second draft of the letter i referred to this page where the space is demised as mine but I didn't refer to the plan so I'll refer to that too. I just noticed the plan doesn't say "parking plan" just Ground Floor Plan and my space isn't marked in red however, the clause I just posted refers to our space. Does this matter?

Apologies for being so daft and not reading properly!

Best wishes,

Peapoduk



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nosferatu1001
post Wed, 9 May 2018 - 11:04
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You need whatever it is that states thateh space is yours, as in yours under lease for 125 years.
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Peapoduk
post Wed, 9 May 2018 - 11:45
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Apologies again if I am being dumb but just to be clear there is a section in my lease that says

"LR6. Term for which the Premises is Leased. The term is as follows: 125 years from and including the commencement date"

I am assuming that as part of the premises the space is included even if its not directly referenced to in this part.

There is another section which says:

LR11.1 Easements granted by this lease for the benefit of the premises. The easements as set out in Part 1 of Schedule 3 of this lease - this is the bit which says I have the right to park my vehicle in space 38 as shown on the annexed plan.

So even if LR6 doesn't directly mention the parking space I am still entitled to park there without the use of a permit for the remainder of my lease i.e. 120 something years remaining.

Another stupid question, but when I send my letter. I also send them the whole of my lease?

Many thanks again , PeapodUK
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nosferatu1001
post Wed, 9 May 2018 - 14:39
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No, youve been told -= only send the bits of the least relevant to this.
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Eljayjay
post Wed, 9 May 2018 - 21:02
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Frankly, as you have had your original appeal turned down and the IAS is a kangaroo court, if I were you, I would now ignore any letters unless and until you get a letter before action. In accordance with the Pre-Action Protocol for Debt Claims, you and they should then try to narrow the issues. You will do this by stating that you do deny the claim because you do not understand how it has arisen and you will request them to provide some explanations, some documents specified by you and any other documents on which they may rely in court.

In the meantime, instead of writing letters at this stage, you would do better to focus on certain issues and by increasing your knowledge through reading other threads.

A couple of issues on which you really do need to focus relate to two extracts from your lease.

The first issue concerns "The right to use parking space numbered 38 and shown on the plan annexed and labelled parking plan on the hard standing of the estate." in the section on Easements and Rights. Although you do not own the space, you have a right to use it which, in my opinion, makes you its occupier (a term of some importance when Schedule 4 of the Protection of Freedoms Act 2012 is at issue). There is a principle implied in every lease known as "non-derogation of grant". Briefly, what it means is that, once something has been granted by a lease, it cannot be taken away or diminished. So, no-one else can have that right or even share it with you because, if they did, you would lose that right either all or some of the time. That being so, the parking company cannot use your allocated parking space for their business purposes unless you had agreed to cede the right to use the space them or agreed to share the right to use the space with them. Of course, you have not done that. So, if you ask yourself the question "how can they charge me for parking?", you should come up with the answer "they can't".

The second issue concerns "For the purpose of the Contracts (Rights of Third Parties) Act 1999 no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease." in the section on Third Party Rights. There are almost certainly two or three parties to the lease: the Landlord or Lessee, i.e. the freeholder; the Tenant or Lessee, i.e. you and any co-owner of your lease; and, possibly, the Management Company. Anyone who is not a party to the lease is, of course, a third party. The parking company is a third party and, as this clause states, "no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease". Consequently, even if the parking scheme had been introduced in accordance with the terms of the lease (which is very probably not true), the parking company cannot enforce any claim which it makes against you.

This post has been edited by Eljayjay: Wed, 9 May 2018 - 21:08
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Churchmouse
post Fri, 11 May 2018 - 00:28
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QUOTE (Eljayjay @ Wed, 9 May 2018 - 22:02) *
The second issue concerns "For the purpose of the Contracts (Rights of Third Parties) Act 1999 no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease." in the section on Third Party Rights. There are almost certainly two or three parties to the lease: the Landlord or Lessee, i.e. the freeholder; the Tenant or Lessee, i.e. you and any co-owner of your lease; and, possibly, the Management Company. Anyone who is not a party to the lease is, of course, a third party. The parking company is a third party and, as this clause states, "no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease". Consequently, even if the parking scheme had been introduced in accordance with the terms of the lease (which is very probably not true), the parking company cannot enforce any claim which it makes against you.

The PPC would almost certainly not attempt to enforce any provision of the lease, so the TPA clause (in the lease) is irrelevant. Instead, they would seek to enforce their own parking contract. That contract may be related in some way to the lease, but it is not a term or provision of the lease.

--Churchmouse
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Peapoduk
post Fri, 11 May 2018 - 05:32
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Thank you Eljayjay, I think then the letter I've been drafting is more like a reply to a LBA letter but will need further adapting in relation to the letter that PCM may send me so will hold fire and do more research as you have suggested.

Best wishes,

Peapoduk

QUOTE (Churchmouse @ Fri, 11 May 2018 - 01:28) *
QUOTE (Eljayjay @ Wed, 9 May 2018 - 22:02) *
The second issue concerns "For the purpose of the Contracts (Rights of Third Parties) Act 1999 no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease." in the section on Third Party Rights. There are almost certainly two or three parties to the lease: the Landlord or Lessee, i.e. the freeholder; the Tenant or Lessee, i.e. you and any co-owner of your lease; and, possibly, the Management Company. Anyone who is not a party to the lease is, of course, a third party. The parking company is a third party and, as this clause states, "no one other than the parties to this lease and their permitted assigns has the right to enforce the terms of this lease". Consequently, even if the parking scheme had been introduced in accordance with the terms of the lease (which is very probably not true), the parking company cannot enforce any claim which it makes against you.

The PPC would almost certainly not attempt to enforce any provision of the lease, so the TPA clause (in the lease) is irrelevant. Instead, they would seek to enforce their own parking contract. That contract may be related in some way to the lease, but it is not a term or provision of the lease.

--Churchmouse


Hi Churchmouse if this clause is irrelevant does the right to use my parking space their supposed contract? From what I gather they don't have a parking contract with me as I didn't sign anything. Sorry I'm a newbie and trying to wrap my head around my defence should they come after me.

Best wishes,

Peapoduk
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Eljayjay
post Fri, 11 May 2018 - 07:32
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In my opinion, the point here is that, where you live, the actions of the parties to the leases are governed by the terms of the lease.

That being so, a parking scheme cannot be introduced by any of the parties unless it is introduced in accordance with the leases.

I entirely accept Churchmouse's point that the parking company would seek to enforce the parking charge under their own parking contract, but there can be no parking scheme or parking contract if they do not accord with the leases and, in the remotest of circumstances that they do accord with the leases, the third party right clause bites.
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Peapoduk
post Mon, 14 May 2018 - 22:47
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Thanks Eljayjay. Haven't heard anything yet from PCM. It's past the 28 days for me to "pay" when should I expect to receive anything?
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