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UKPC Charge, In private bay at my rented flat
boro12856
post Tue, 27 Aug 2013 - 10:43
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Hi all, spent a while reading various threads but thought I had best ask for my own personal advice.

Me and my partner rent a flat which has a gated entrance and you have your own space (corresponding to flat number) ours is in the underground section. We had a parking permit which has the number of the space on it to display on a daily basis.

Recently the gates to the carpark have been 'broken' and one side is constantly left open, which now has resulted in three UKPC notices in the space of two weeks.

We currently only have her car at the flat and I very rarely use the car, both occasions I have used it and returned to our parking bay I have once forgotten to put the parking permit on the dashboard, returning to the car next morning to see we had a ticket given to us around 4am for not displaying permit. And the second one for the same reason this time however I am 100% certain the permit was placed on the dashboard, however it wasn't there the next morning and another ticket was given (again around 4am, these idiots love a nightshift)

The third notice we had received was when we had friends staying for a weekend, we have a visitor permit too, which we were not given any advice about how long this could be used for by our landlord. All we were told is that if using a visitor permit please park in the disabled bays. Now this permit was used constantly for around 2 weeks when we first moved in as we had two cars then, and no problems. I have also noticed other cars at the flats always in the disabled spots and not disabled drivers.

But one weekend we gave our permit to friends to park downstairs and my girlfriend parked her car in the visitors bay, on the second night she received another charge notice this time saying that she had over stayed her welcome in the visitors bay.

Now I am just looking for what to do with these pieces of paper I have been given, as there is NO WAY I will be paying them a penny! We need to use an electric fob to gain access to the carpark, and our parking spot corresponds with our flat number. So if they are coming in EVERY NIGHT they must see the car in the same bay using the permit, yet the ONE occasions I genuinely know I forgot to display the permit a ticket is slapped straight on. It is funny however how the influx of tickets corresponds with the gated entrance been broken.

Thanks for any help.

Regards
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post Tue, 27 Aug 2013 - 10:43
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Eljayjay
post Wed, 10 Oct 2018 - 19:35
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boro12856

Do you now have a copy of the lease?

What was the date of SCS's letter?

This post has been edited by Eljayjay: Wed, 10 Oct 2018 - 19:35
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SchoolRunMum
post Wed, 10 Oct 2018 - 23:32
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Parking Cowboys is a useful resource again, now they've ditched the dodgy links I see:

https://www.parkingcowboys.co.uk/residential-parking/

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boro12856
post Thu, 11 Oct 2018 - 04:57
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QUOTE (Eljayjay @ Wed, 10 Oct 2018 - 20:35) *
boro12856

Do you now have a copy of the lease?

What was the date of SCS's letter?


Lease I am still awaiting on the form was sent off with the cheque almost 2 weeks ago, although the cheque was sent back to me within 3 days as I had stupidly forgot to date it. I am back away with work but I have been pestering my other half every day to go through the post and nothing yet.

SCS latest letter requesting the address arrived yesterday so 10-10-18

Edit - just checked my bank this morning and the payment for the lease has came out so I should expect it within next couple days I’d imagine

This post has been edited by boro12856: Thu, 11 Oct 2018 - 07:27
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boro12856
post Mon, 15 Oct 2018 - 11:57
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QUOTE (SchoolRunMum @ Wed, 10 Oct 2018 - 19:09) *
Give them the residential address, as requested, and tell them they must share with you a copy of their findings from the LR that they say they will apply for, and not just selected excerpts or you will report them to the SRA and ICO.

And in the meantime the file must be marked for Restriction of Data Processing, and any litigation placed on hold.


I am looking to reply to them today, I am unsure as to what SRA & ICO are. Would you be able to give me a written example of how to reply, or just be blunt, here’s address etc.

Also the lease has arrived, I am not home from work until 22nd and there’s no one who can upload the documents in the meantime. But I suppose replying to the request for address to SCS will buy me more time.
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nosferatu1001
post Mon, 15 Oct 2018 - 13:48
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Solicitors Regulation Authority - google'able
Ditto ICO - Information Commissioners Office
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boro12856
post Thu, 18 Oct 2018 - 08:09
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Morning all, so I have just returned from work and the lease has arrived. Personally through looking at it, I am not sure if things are looking in my favour. Its something like 50 pages long, is there any specifics to upload or shall I upload the whole document to an external link? TIA
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nosferatu1001
post Thu, 18 Oct 2018 - 13:04
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Well anythign that deals with
- your property and the definituons of such
- anything to do with parking, parking spaces, communical spaces, and the definitions of such
- any covenants etc youre bound by relating to use of car spaces
- any rights for them to vary Esatte regualtions / introduce new ones and WHY they can do so.
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ostell
post Thu, 18 Oct 2018 - 21:41
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"Demised space"
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SchoolRunMum
post Thu, 18 Oct 2018 - 21:43
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Also look for rights to peaceful enjoyment, and anything about the Contracts (Rights of Third Parties) Act.
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boro12856
post Mon, 22 Oct 2018 - 16:52
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Went through this afternoon and these are all I can find so far, I have read through twice. But I will admit there's an awful lot of wording that is way beyond me. I am going to have another read through in the morning in case I missed anything.

Thanks

http://s000.tinyupload.com/download.php?fi...787039239170767
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SchoolRunMum
post Tue, 23 Oct 2018 - 00:03
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Can't get that to work, can you host on Dropbox or type it out here in a reply?

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boro12856
post Tue, 23 Oct 2018 - 07:19
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QUOTE (SchoolRunMum @ Tue, 23 Oct 2018 - 01:03) *
Can't get that to work, can you host on Dropbox or type it out here in a reply?


https://www.dropbox.com/s/ivx1d0pjt5mypb2/2...017-37.pdf?dl=0
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boro12856
post Mon, 5 Nov 2018 - 18:22
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Reply from SCS regarding the lease, I had already informed them I rented the property at the time, so unsure as to why the questions

Re: UK Parking Control Ltd



Further to your email below, please find attached a copy of the lease dated 18 August 2009 ("the Lease") that we have obtained from the Land Registry in respect of Flat....



Firstly, we note that neither the Lease nor the Title Register (attached) contain your name anywhere in the document. Accordingly, can you please clarify your position and explain to us why you believe that you were entitled to park at the site in question?



Having considered the attached Lease, we note that under Schedule 2, clause 8 on page 21 of the Lease, it grants the Lessee the right to use the car parking space edged green on the Plan (bay number 5) or any other parking space if allocated by the Lessor from time to time within the Development, for the purpose of parking one fully taxed and licensed private motor car or motor cycle only.



You are not the leaseholder of the property and therefore the above clause does not apply to you (unless you can prove otherwise). We refer you to clause 8.1 on page 15 of the Lease, which states that pursuant to the Contracts (Rights of Third Parties) Act 1999, the Lease does not confer a benefit on any person who is not a party to this lease. Accordingly, it appears that you have no right under the Lease and therefore you do not have an unfettered right to park your vehicle at the site in question.



In addition, we refer you to Schedule 4, clause 18.1 on page 28 of the Lease, which states that the leaseholder must comply with the regulations as imposed by the Lessor in regard to the proper management of the Apartments, the Reserved Property and the Development (please see the definitions set out in the Lease). It is our client’s position that the implementation of a parking scheme at the site are such regulations and therefore the leaseholder is bound to comply with the same.



Given the above, it is our client’s position that the parking charge notices for the sum of £750.00 were validly issued against you and remain due and owing.



We look forward to hearing from you.


Yours sincerely,
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Eljayjay
post Wed, 7 Nov 2018 - 11:32
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How can anyone offer guidance on this when you have still not given us sight of the lease?

The fact that you are a sub-tenant (and it would be difficult to imagine any apartment lease which does not take sub-tenants into account) means that, "as a member of a class or as answering a particular description" (see the Contracts (Rights of Third Parties) Act 1999), you almost certainly have a right to enforce the lease's terms.

Without having seen the lease, however, I cannot confirm that.

This post has been edited by Eljayjay: Wed, 7 Nov 2018 - 11:32
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Churchmouse
post Wed, 7 Nov 2018 - 16:06
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Indeed.

As for the PPC argument re the lease requiring compliance with "regulations as imposed by the Lessor" includes requiring the tenant to engage in contractual relations with a third party PPC, this thread contains some very good language refuting any such obligation.

--Churchmouse
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boro12856
post Thu, 8 Nov 2018 - 12:11
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QUOTE (Eljayjay @ Wed, 7 Nov 2018 - 11:32) *
How can anyone offer guidance on this when you have still not given us sight of the lease?

The fact that you are a sub-tenant (and it would be difficult to imagine any apartment lease which does not take sub-tenants into account) means that, "as a member of a class or as answering a particular description" (see the Contracts (Rights of Third Parties) Act 1999), you almost certainly have a right to enforce the lease's terms.

Without having seen the lease, however, I cannot confirm that.


Hi Eljayjay, I did upload the pages I believed of reference from the lease to the thread in two places. The latest upload was to dropbox just two posts above yours I believe. I can upload the full lease if that will be better?

Thanks

EDIT - Here is the full lease uploaded http://s000.tinyupload.com/index.php?file_...836369746228866

This post has been edited by boro12856: Thu, 8 Nov 2018 - 12:42
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Eljayjay
post Thu, 8 Nov 2018 - 18:28
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I shall let you have my comments on the lease, etc. tomorrow.
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SchoolRunMum
post Fri, 9 Nov 2018 - 01:30
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QUOTE (boro12856 @ Thu, 8 Nov 2018 - 13:11) *


I've looked at the lease and don't think you should hang your hat on it, given the unallocated bays in question, the terms of the lease and the fact you were a tenant. Where is a copy of your tenancy agreement, have we seen that or can you get it fairly urgently, perhaps by sending a SAR to the Letting Agent you dealt with which advertised the flat all those years ago?

Anyway re the Lease:

The leaseholder - and you as tenant at the time had a right 'in common with all others entitled to the like right' to use and park in a visitor bay. BUT for not more than 24 hours in a 48 hr period. As your leasehold owner landlord only had a right to park in those visitors bays on a ''first come first served basis'' then they cannot have actually promised the use of those spaces as a right or grant to their tenant (you).

However what did your tenancy agreement actually say about parking, and who told you that you ''could'' use those bays? Is it in writing? I think your tenancy agreement is more important here than the lease, because we are not talking about demised or allocated bays or exclusive rights to park that could be granted to a tenant as such, we are talking about bays that (as you were told) you could use if they were empty, 'in common with all others entitled to the like right'.

The flat's lease defines 'regulations' saying that the freehold landowner only has a limited right to make 'reasonable' regulations for the proper management of the estate 'which do not unnecessarily restrict the enjoyment of the premises'.

6.1. says: ''the lessee shall and may peaceably and quietly hold and enjoy the premises...without any lawful interruption or disturbance from or by the lessor or any person or persons rightfully claiming under or in trust for it''.

and 8.1. ''this lease shall not be construed as providing nor purporting to confer a benefit on any person who is not a party to this lease pursuant to the Contracts (Rights of Third Parties Act) 1999.''

I reckon emanresu is about to have to put some seasoning on his hat but to be fair, this comment was in early 2015, months before the Beavis case opened the floodgates:

QUOTE (emanresu @ Fri, 9 Jan 2015 - 10:59) *
QUOTE
7 tickets though does increase the chance of them actually issuing a claim. (£1k+ may be worth their while)


I'll eat my hat if the do - plus dig out the case of East Riding v UKPC to see if there is any more porridge available.



The PCNs in the SCS letter are for allegedly parking for too long in the 24 hr visitors bay in 2014 (a limitation which IS mentioned in the lease). But, you said ages ago:

QUOTE
From what I recall there was no notice to say "no return within..."


But I cannot find that you commented once SCS produced the photos of the car and signs, whether you can actually make out from the photos taken on the days (not from stock images UKPC might have mocked up of 'here's what the sign said') whether it DID say beside the visitors bays that residents/visitors could only park for 24 hours? We've seen such signs before with a little clock icon but unreadable tiny wording. So, do the photos SCS sent show the signs near the car on ALL occasions, saying that there is a £100 charge (large lettering, readable?) AND that there is a 24hr time limit? did they provide photos from each and every date showing the words on the signs at the visitors bays?

The charge - even if legible (and I bet it is not) - was not £150 so they cannot claim £150 a pop (plus try to trouser over 4 years worth of interest due to their own inaction).

I would suggest a reply to SCS Law with something like this:



Dear Sirs,

Re: UK Parking Control Ltd

I refer to your reply attaching a copy of the lease dated 18 August 2009 ("the Lease") that you obtained from the Land Registry.

Whilst it is noted with interest that you ''note that neither the Lease nor the Title Register (attached) contain your name anywhere in the document'' and ask ''can you please clarify your position and explain to us why you believe that you were entitled to park at the site in question?'' I reiterate that you have already been informed that we were tenants at the material time in 2014. As residents we enjoyed the right 'in common with all others entitled to the like right' to use visitors bays on a first come first served basis.

Further, whilst it is noted that you note that ''under Schedule 2, clause 8 on page 21 of the Lease, it grants the Lessee the right to use the car parking space edged green on the Plan (bay number 5) or any other parking space if allocated by the Lessor from time to time within the Development, for the purpose of parking one fully taxed and licensed private motor car or motor cycle only'' I fail to understand why you would have noted that section, given that your client's charges are not relating to an allocated bay.

It will be common ground that as I was renting the flat I was not the leaseholder of the property. I agree with your sentence ''therefore the above clause does not apply'' because clearly, the above clause is about allocated bays. Can you please clarify your position.

I found it ironic to note that you helpfully referred me to clause 8.1 on page 15 of the Lease, which states that pursuant to the Contracts (Rights of Third Parties) Act 1999, the Lease does not confer a benefit on any person who is not a party to this lease. Accordingly, it appears that your clients have no right to enforce any sections under the Lease at all and therefore your client does not have any cause of action (unless you can prove otherwise).

In addition, I note that you also referred me to Schedule 4, clause 18.1 on page 28 of the Lease, ''which states that the leaseholder must comply with the regulations as imposed by the Lessor in regard to the proper management of the Apartments, the Reserved Property and the Development...'' As you rightly say, it then continues: ''(please see the definitions set out in the Lease)'' and so I did, and I refer you to the DEFINITIONS at 1.30 which clarifies the limited right to make 'reasonable' regulations 'which do not unnecessarily restrict the enjoyment of the premises'.

By any interpretation, a third party imposing parking charges against tenants at their home location, where no relevant obligations or contractual relations exist is unreasonable. Further, allowing a notorious third party firm like UKPC (who you have helpfully admitted, are familiar with clause 8.1 on page 15 of the Lease, that it ''does not confer a benefit on any person who is not a party to this lease'') to harass me for some five years under the spurious excuse of trying to enforce a lease that grants your client no rights at all, certainly 'unnecessarily restricted' and is fundamentally incompatible with a tenant's right to the peaceful enjoyment of the premises.

Even if a Landowner is permitted to impose such onerous restrictions, the Lease you refer to did not entitle anyone to impose on me a contractual relationship with a third party, nor to require me to pay a set charge (in this case £100 which has risen inexplicably to £150) for any failure to comply with a lease that I am not party to. If sections of the lease were allegedly breached, then that would be a matter solely for the parties to that lease, and is nothing to do with me or indeed, UKPC.

Even if it is your client’s position that ''the implementation of a parking scheme at the site are such regulations and therefore the leaseholder is bound to comply with the same'' this is of no relevance to me, because again, this has nothing to do with UKPC or me. Tell your story to the leaseholder if it is your client's case that UKPC can bind the leaseholder to comply with their third party terms and pay additional charges.

Can you please clarify your position and explain to me why you believe that your clients, as a third party, were entitled to operate and enforce the Lease at the site in question? I note that neither the Lease nor the Title Register contained their name anywhere in the document.

I note you say that ''it is our client’s position that the parking charge notices for the sum of £750.00 were validly issued against you and remain due and owing'' but this is denied and there were no signs in any case, that could possibly have set any purported parking charge at £150. I note you have sent a few photographs to me already but I am aware this is not all of the data held by your client and I now ask for ALL photographs taken on the material dates which show the car and/or the signs and lines. Kindly note: I am not interested in a template of how UKPC say the sign might have looked on any date. I also require all letters, emails and communications sent to myself or any third party, including each and every PCN and 'Notice to Keeper' (howsoever described), front and back.

Your client must consider this a Subject Access Request ('SAR') under the General Data Protection Regulation (GDPR) and as such, their Data Protection Officer must now restrict all data processing whilst their records are interrogated to ensure that this time, I am furnished with all photographs, all paperwork, all telephone notes, letters and emails exchanged about me/this car/these charges, including a copy of their refusal to cancel the PCNs once they received the clear instruction to do so, from their principal the Managing Agent. Since UKPC and SCS Law already have sufficient identifying information to be satisfied that I was the registered keeper of the vehicle in question, do not delay the SAR under any flimsy excuse of asking for any unjustified additional identification.

With the SAR reply, I require UKPC to explain to me and clarify the reason for this untrue statement their company made recently, to the Managing Agent about my case:

''Unfortunately these charges have escalated to a stage whereby I cannot cancel them. The charges were issued from 6th April 2014 until 20th June 2014. The charges have gone to a stage where our Legal Team have started to take action to retrieve the monies owed for each of the parking charge notices.''

It is untrue for your client to tell the Managing Agents that they ''cannot'' cancel these PCNs because legal action had 'started'. As a firm of solicitors who knows otherwise, I suggest you now explain to your clients that engagement with the pre-action protocol for debt claims is not a stage where ''legal action has started'', and indeed a resolution of a dispute such as this outside of the court process remains the overriding objective. Hence, I urge UKPC to reconsider their refusal to cancel and their lack of cause of action or standing, given the fact that we both know that the Managing Agents (on behalf of the freehold owners) do not condone the charges against me. I will require UKPC to explain their mendacious statement at trial, and their refusal to cancel the charges despite the absence of support from their principal and therefore, the absence of any legitimate interest to save these unconscionable, punitive charges from the penalty rule.

I trust you will now place the matter on hold whilst you revert to your client and I look forward to a more relevant and substantive reply including the SAR data, within 30 days.

yours faithfully,


This post has been edited by SchoolRunMum: Fri, 9 Nov 2018 - 01:43
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Pensioner
post Fri, 9 Nov 2018 - 10:21
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Well done SRM.


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Eljayjay
post Fri, 9 Nov 2018 - 18:05
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boro12856 -

I would suggest that you reply to SCS as follows:-


Dear <salutation>,

Thank you for your letter of <date> enclosing a copy of the lease obtained from the Land Registry in respect of Flat <rest of address>.

As I have already mentioned in previous correspondence, I was a tenant of the flat’s Lessee and I derived my right to park there from my tenancy agreement with the Lessee. I derived rights to enforce the terms of the lease under the Contracts (Rights of Third Parties) Act 1999 by virtue of clauses 5.1 (of the Covenants by the Lessee on page 12) and 8.1 (of the General Provisions on page 15) of the lease.

You appear to have been lax in referring to the Parking Space clause (clause 8 on page 26 of the lease). That clause actually confers on the Lessee, my landlord, “The right (to the exclusion of all others) to use the car parking space(s) edged green on the Plans or any other parking space{s) (if any) allocated by the Lessor from time to time within the Development for the purpose of parking one fully taxed and licensed private motor car or motor cycle only”. Clearly, the words “to the exclusion of all others” means that your client has no right to use the parking space for the purpose of parking which, in turn, results in your client having no consideration to offer in return for a parking charge.

The lease neither expressly provides that your client may in its own right enforce any term of the lease nor contains any term purporting to confer a benefit on your client. Put simply, it is your client, not I, who has no right to enforce any term of the lease pursuant to the Contracts (Rights of Third Parties) Act 1999. Clearly, as the Act confers no rights on your client, privity of contract continues to prevent your client enforcing the leases’s terms. In any event, there is no term within the lease which allows any of the parties to it (let alone a stranger to it) to levy parking charges.

There are two Lessee’s covenants which apply to “Parking” (clause 9 on page 25 of the lease) and the “Parking Space” (clause 19 on pages 28 and 29 of the lease). Neither of these covenants require the Lessee (or the Lessee’s tenants) to display a parking permit when using the parking space or to pay a parking charge in the event of not displaying a parking permit. There is nothing to suggest that the Regulations clauses (clauses 18.1, 18.2 and 18.3 on page 28 of the lease) are intended to cover parking matters.

In any event, any regulations made by the Lessor permitting a parking operator, such as your client, to use a Lessee’s parking space for the purpose of the parking operator’s business would be neither reasonable nor consistent with the provisions of the lease given the wording of the Parking Space clause (clause 8 on page 26 of the lease). That would clearly be contrary to the longstanding principle of non-derogation from grant implied in all leases.

Such regulations would also be neither reasonable nor consistent with the lease’s provisions given that the lease makes no provision for the Lessor to levy (or to authorise others to levy) parking charges.

The lease’s terms can only be changed in one of three ways: by a deed of variation made between the parties; by making a successful application to the appropriate tribunal for an order varying the lease in such manner as is specified in the application; or by regulations made by the Lessor in accordance with the lease and in compliance with its terms. I am not aware of any deed of variation or of any order or of any regulations having been made to change the terms of the lease. Furthermore, no variation to the terms of the lease has been registered at the Land Registry.

In these circumstances, it does seem that your client’s lack of knowledge of the lease’s terms demonstrates that it did not carry out due diligence before commencing its operations on the land. As a result, when entering into a contract with the Lessor or its agents, it is very obvious that your client failed to comply with Section 13 of the Supply of Goods and Services Act 1982, which is headed “Implied term about care and skill” and states that “In a relevant contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”. Similarly, when purporting to enter into contract with the driver of a vehicle, it is very obvious that your client your client has failed to meet its obligations under Section 49 of the Consumer Rights Act 2015, which is headed “Service to be performed with reasonable care and” and states “Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill”.

In short, your client has failed to satisfy me that it has any right to any parking charges from me and, as I am sure you will realise from the contents of this letter, in the event that your client makes a formal claim against me, the claim will be robustly defended.

Yours…

This post has been edited by Eljayjay: Fri, 9 Nov 2018 - 18:08
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