Leaseholder – Fighting Back 2 (The Sequel) |
Leaseholder – Fighting Back 2 (The Sequel) |
Sun, 16 Sep 2018 - 15:35
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#1
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
Hi All,
It has been a while since I last posted but I've not been idle as I've been trying to get to the bottom of some of the issues raised in the fallout from my case last year. (Here's the background reading: http://forums.pepipoo.com/index.php?showtopic=111107 ) I've been working on 3x angles: * Getting clarification of resident's rights. * Claiming back my losses. * Changing the existing parking policy for residents. The clarification of the rights has been a slow one. Within the lease, it is not stated there are demised rights to park on the land, there is a reference which says “observe all regulations made by the Lessors from time to time relating to the parking of such vehicles” but that's it. I've written a letter to the landlords for clarification and to state the MA is imposing restrictions (when the lease clearly states it's only the Lessor who can). So far I've not had any response, there has been a change in management company (for collection of ground rent), so I'm going to give them the benefit of the doubt and assume the lack of reply has been down to these changes. I'm now going to start pursuing through the new management company to open up dialogue and ask for clarification. When it comes to trying to recover my losses from the court case last year, are there any time limits?? I've been giving the MA some grief over it but they have washed their hands of it, saying it's a matter which needs taking up with the TA as they were the ones who signed the contract with the PPC. When sorting things for my court hearing last year, I did tell the TA I would be pursuing them for any losses incurred. However, for various reasons, I've not pursued them to date. There is still a PPC on-site, though different from the one I had a run-in with. I have brought it to the attention of the MA that under the terms of the lease, they are not allowed to impose parking restrictions on residents (as mentioned earlier, the lease states: “observe all regulations made by the Lessors from time to time relating to the parking of such vehicles”… I.e. NOT "Lessors or their agents"). As we are in a town centre location, I have told them I agree we need some management in place but in doing so, we need to have an officially recognised route getting charges dropped for any legitimate users who make a mistake. This conversation has been going back & forth for months, the MA refuse to accept my arguments and now refuse to deal with me on this subject as apparently I "don’t understand the landlord MA relationship" and suggest I "get legal advice". So, the questions are: * Am I barking up the wrong tree or am I correct in my interpretation of the lease? * If I am correct, can I simply 'cut to the chase', hit them with a 'Tortious Interference' damages claim or do I have to wait until after the PPC charge me for a parking event? * If we establish I'm in a good position to make a claim, is it better for me to send them the bill and start court proceedings or deduct the amount from their maintenance fees. Then, if they take me to court, simply file a counter claim?? Thoughts? TIA CL |
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Sun, 16 Sep 2018 - 15:35
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Sun, 16 Sep 2018 - 16:20
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#2
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
Post your lease (after redacting any personal data).
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Sun, 16 Sep 2018 - 16:54
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#3
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
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Sun, 16 Sep 2018 - 17:27
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#4
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
The part that mentions parking
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Sun, 16 Sep 2018 - 17:30
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#5
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
No, please post all of it. Let’s give it a really good read.
If you can post it as a pdf file, I should be able to make it searchable. In addition to looking for words with the stem “park...”, I shall look for any powers to make rules and/or regulations, what’s payable under it, any clause about third-party rights and so on. Essentially, I suggest we start by making sure that, if you receive any more tickets, you have a really strong defence. Once we are happy with the defence, we can consider how you might go on the attack. This post has been edited by Eljayjay: Sun, 16 Sep 2018 - 17:31 |
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Sun, 16 Sep 2018 - 22:33
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#6
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
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Mon, 17 Sep 2018 - 07:22
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#7
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Stick it somewhere else. DONT use the forums upload space.
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Mon, 17 Sep 2018 - 21:07
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#8
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
Stick it somewhere else. DONT use the forums upload space. No problem. I have stuck a redacted version here: http://s000.tinyupload.com/?file_id=69540570725914771190 CL |
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Mon, 17 Sep 2018 - 22:20
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#9
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
Well done! Although I shall have a longer read tomorrow, there are a couple of things that stand out immediately and a couple of questions which I need to ask.
You referred to the clause which reads:- "Not to cause any obstruction in or on the passageways or staircase in the Building nor in or on the approaches roads passageways adjacent or leading to the Building by leaving or parking or permitting to be left or parked any motor car motor cycle bicycle perambulator or other vehicle belonging to or used by the Lessee or occupier of the demised premises or by any of their friends servants or visitors and to observe all regulations made by the Lessors from time to time relating to the parking of such vehicles" There is also a clause which reads:- "Full right and liberty for the Lessee and all persons authorised by the Lessee (in common with all other persons entitled to the like right) at all times and for all purposes in connection with the permitted user of the demised premises to go pass and repass over and through and along the main entrance and passages landings hall lifts and staircase in the Building and the access paths roads and yards leading to the demised premises" A garage is mentioned on page 16. Do you have a garage? Regardless of whether or not you have a garage, where do you park and what makes you think that you are able to park there? |
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Tue, 18 Sep 2018 - 10:19
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#10
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
A garage is mentioned on page 16. Do you have a garage? There are garages on-site but my property doesn't have one. Regardless of whether or not you have a garage, where do you park and what makes you think that you are able to park there? There is communal parking around the site, mainly located in a central courtyard, around a grassed area. There are no allocated spaces, it is all on a first-come-first-served basis and the MA have issued the residents with 'permits'. ...and this is where I am trying to get clarification. From what I can see, there are no demised rights for 'parking' mentioned in the lease but parking is mentioned in that regulations clause. That clause also states the Lessors can apply regulations but no mention of their 'Agents'. i.e. It's not up to the MA to be bringing in a PPC... IYSWIM? CL |
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Tue, 18 Sep 2018 - 17:43
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#11
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I think you might be able to guess much of what I am about to say but I shall say it anyway.
Unfortunately, you are in a much weaker position to take the fight to anyone than a lessee with a demised parking space or a lessee with a right to park in an allocated parking space. In addition, you are obliged "to observe all regulations made by the Lessors from time to time relating to the parking of such vehicles". I am sure you are right when you say that you are not obliged to observe any regulations made by the Managing Agents. I say this because there are places in your lease where it is clear that "the Lessors or their Managing Agents" have power to do certain things, but there are other places (like the above excerpt) where only the Lessors can do other things. So, you could write to the Lessors asking them whether they have made any regulations about anything and, if they have, requesting a copy of them. They would, of course, be entirely reasonable questions to ask. I do, however, suspect that they may simply forward your letter to the Managing Agents and leave them to reply. You may well find yourself being fobbed-off in this way unless and until you engage a solicitor to ask the questions for you. If I were in your shoes, I would display your parking permit when you park. But where does leave you if you forget to display your parking permit? My belief is that, in those circumstances, a Court should dismiss any claim against you for the usual £100 parking charge (or more like £250 by the time it reaches Court) for a number of reasons. Firstly, if some regulations have been or were to be made obliging you to display a parking permit, you have a right to park for which you will already have paid when you purchased your lease. So, it would not be a parking charge. It would be a penalty for failing to display a permit. Secondly, you would be in breach of your lease. The Lessors' remedy for a breach of your lease should be damages from you and/or an injunction ordering you not to repeat the breach as opposed to an arbitrary parking charge or even an arbitrary penalty. If you take a look at karenep's thread, you will find a witness statement which I drafted for her today. She is very fortunate in that she does have a demised parking space. There are, however, some points made in the draft witness statement that would be relevant to your situation. So, take a look at the witness statement and try to get your hear around some of the issues. Apart from that, I think it is probably sensible to leave things for now, but please do come back in the event of you receiving a further ticket because I believe I can come up with an appeal which will, quite possibly, tie the parking operator in knots. This post has been edited by Eljayjay: Tue, 18 Sep 2018 - 17:46 |
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Thu, 20 Sep 2018 - 21:08
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#12
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Member Group: Members Posts: 104 Joined: 5 Nov 2016 Member No.: 88,267 |
Hi Eljayjay,
Thanks for taking the time to look into it and as suspected, not having demised rights is the stumbling block here. So, getting heavy handed with the MA is a non-starter. For the time being then, I will continue to pursue the freeholder for clarification and send a suitably worded letter to get the TA to start asking questions of the MA too. Cheers, CL |
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