Lease agreement/tenancy agreement

[squire1234]

I have attached the N1.

I did mention the lease agreement to them in my initial response to their LBC and they asked me to send it to them, which I did, and they completely ignored it.

Regarding another identical PCN, this was their response:

we note you are not a party to the lease and as such, any alleged rights would not be applicable to you

This is because I sent them the landlord's lease agreement to which my AST refers in the following:

Where the Landlord’s own title to the Premises is leasehold and not freehold, the Landlord may themselves be a tenant under a superior lease. The Tenant agrees to perform and observe at all times during the Term the conditions and stipulations contained in the superior lease that were notified to the Tenant prior to the commencement of the tenancy.

My AST does not mention parking at all but I was informed by my landlord of it.

[charitynjw]

I have attached the N1.

I did mention the lease agreement to them in my initial response to their LBC and they asked me to send it to them, which I did, and they completely ignored it.

Regarding another identical PCN, this was their response:



This is because I sent them the landlord's lease agreement to which my AST refers in the following:



My AST does not mention parking at all but I was informed by my landlord of it.

Ok.

Acknowledge the claim.
https://legalbeagles.info/library/gu...ledge-a-claim/

Once you've sorted that, come back on here & let us know

Btw, redact the password on the N1

[charitynjw]

we note you are not a party to the lease and as such, any alleged rights would not be applicable to you

So are they suggesting you are squatters? Tolerated trespassers?

Your landlord is a mesne (pronounced 'mean') tenant, you are a sub-tenant.

Gladrags ought to stick to parking stuff.
Maybe when (if) they get that right, then they can have a bash at mucking other stuff up!

(Yeah, I know......... so young, yet so cynical!)

[squire1234]

Acknowledge the claim.
https://legalbeagles.info/library/gu...ledge-a-claim/

Once you've sorted that, come back on here & let us know

Done!

So are they suggesting you are squatters? Tolerated trespassers?

Your landlord is a mesne (pronounced 'mean') tenant, you are a sub-tenant.

Gladrags ought to stick to parking stuff.
Maybe when (if) they get that right, then they can have a bash at mucking other stuff up!

(Yeah, I know......... so young, yet so cynical!)

I honestly do not know. I initially only sent them my landlord's lease agreement (which obviously does not have my name) but then sent my AST once they responded with that. They chose to ignore it entirely after that.

[charitynjw]

Done!



I honestly do not know. I initially only sent them my landlord's lease agreement (which obviously does not have my name) but then sent my AST once they responded with that. They chose to ignore it entirely after that.

If it were me I'd press hard & get them to agree that you are a legal tenant, & have the same rights as regards peaceful enjoyment of the demised premises as has your tenant landlord (mesne tenant) (ie his rights are passed to you)

[charitynjw]

If you've acknowledged, you now have loads of time to craft a defence.
We would suggest that it isn't submitted until much closer to the deadline...that way you can use the time wisely, & it will reflect anything that happens in the interim. (Disclosures of evidence, etc)

[charitynjw]

The Code of Practice will come in handy. (See below)

3. Automatic Number Plate Recognition and use of surveillance cameras.
3.1 You may use ANPR technology to identify vehicles for the purpose of issuing parking charge notices.
3.2 Where ANPR technology is used, this must be clearly stated using appropriate signage.
3.3 You must ensure there are appropriate manual checks in place to ensure correct registration details are used to obtain keeper details from the DVLA.
3.4 If you use ANPR technology you must ensure the Keeper Data you obtain and process is used, stored and disposed of appropriately in accordance with ICO requirements.
3.5 Operators should have regard to the Surveillance Camera Code of Practice when using surveillance cameras.

[charitynjw]

CoP attached

[squire1234]

If it were me I'd press hard & get them to agree that you are a legal tenant, & have the same rights as regards peaceful enjoyment of the demised premises as has your tenant landlord (mesne tenant) (ie his rights are passed to you)

Get Gladrags to agree? But they've already issued the court claim so is it worth still pressing..

If you've acknowledged, you now have loads of time to craft a defence.
We would suggest that it isn't submitted until much closer to the deadline...that way you can use the time wisely, & it will reflect anything that happens in the interim. (Disclosures of evidence, etc)

Sounds good, I have actually drafted a defence for the first ticket (the one you advised had a delayed NTK outside the 56 day window) as the deadline for submission is on 1st April. I now need to work on the next one.

3.2 Where ANPR technology is used, this must be clearly stated using appropriate signage.

There wasn't any ANPR technology used though.

CoP attached

Thanks for this!

[charitynjw]

Get Gladrags to agree? But they've already issued the court claim so is it worth still pressing..



Sounds good, I have actually drafted a defence for the first ticket (the one you advised had a delayed NTK outside the 56 day window) as the deadline for submission is on 1st April. I now need to work on the next one.



There wasn't any ANPR technology used though.



Thanks for this!

Pics of the vehicle (if any) must have been taken with something.
You have every right to that info.

How many county court claims are there atm?

[squire1234]

I have the photos actually, they were available to me when the windscreen ticket was issued.

2 county court claims so far. One issued on 25th feb and the other on 18th mar. Should I post my defence ?

[charitynjw]

Yes please

[squire1234]

“IN THE COUNTY COURT

CLAIM No: ...

BETWEEN:

LINK PARKING LTD (Claimant)

-and-

... (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 14/04/2018. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as '[LOCATION]’. The Defendant has, since [DATE], held legal title under the terms of a lease to [ADDRESS] at that location.

4. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

5. The Claimant has provided no evidence thus far that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

Failure to comply with Schedule 4 POFA
6. As set out by Schedule 4 Paragraph 8 (4), the deadline for the Notice to Keeper is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given. The Defendant notes that the ‘Notice to Keeper’ was sent on 13/06/2018 and received on 15/06/2018, 62 days after the alleged breach of contract on 14/04/2018. In this instance, the Claimant failed to provide due notice and, therefore, liability cannot be transferred to the Defendant.

7. Further, the Defendant notes that the ‘Notice to Driver’ was deficient in its contents in that it failed to specify the ‘period of parking’ as is required by POFA Schedule 4, Sections 7(2)(2) & (3). As stipulated, this is obligatory to the requirements of the notice and such an omission renders both the ‘Notice to Driver’ and, subsequent, ‘Notice to Keeper invalid in law.

8. The Court is invited to dismiss the Claim in its entirety on the above basis, that the Claimant has failed to meet the mandatory requirements set out by Schedule 4 POFA and court proceedings are, therefore, unwarranted.

Authority to Park and Primacy of Contract
9. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and permission for the use of communal areas.
9.1. There are no terms within the lease requiring lessees to pay penalties to third parties, such as the Claimant, for non-compliance of the same.

10. Communal areas within the estate are often used for loading/unloading as parking is limited within the estate. The Defendant avers that there was an absolute entitlement for the vehicle to remain in the alleged location, deriving from the terms of the lease, for the purposes of loading/unloading.

11. The Defendant relies on their primacy of contract and avers that the operator’s 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.

12. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. The Defendant avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

Inadequate/insufficient signage
13. At the time of the material events the signage was deficient in number, distribution, wording and lighting from the site of the alleged contravention to reasonably convey a contractual obligation.

14. The signage at the entrance to the land was displayed in a manner that could not be seen when attempting to safely manoeuvre a vehicle into the turning of the residential estate.

15. In the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. The only clear large lettering on the signage was the notice of ‘WARNING: PRIVATE LAND' – ‘Private Land’ to which the Defendant has access as granted by the lease agreement.

16. Further, the signs suggest that ‘by parking or remaining at this site’ without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly non-sensical, since if there is no permission, there is no offer, and therefore no contract.

17. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

Summary
18. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

19. In summary, it is the Defendant's primary defence that the claim is invalid on the grounds that the POFA 2012 Section 4 conditions were not met at first instance. Further, the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Main defence points are headed in bold. Any help would be greatly appreciated! Particularly the section regarding Primacy of contract of the lease.

[charitynjw]

I would put as my para #2

"2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence."

I think it's enough at this stage that you have mentioned 'primacy of contract' in the defence.
It can then be expanded upon later in your witness statement. (If it ever gets that far!)

Btw, Law of Property Act 1925 ss52-54
https://forums.landlordzone.co.uk/fo...2-54-explained

[squire1234]

Ok will add that line in, thanks.

Incidentally, these are the lines from the lease that I could see refer to parking in some way or another:

“Accessways” means the roads footpaths driveways access areas ramps entrance gates (if any) and all apparatus and service media ancillary thereto forming part of the Development and any roads footpaths access areas ramps entrance gates and apparatus and service media substituted therefor (but excluding the Adoptable Roads any entrance halls passages landings staircases and lifts within the Building)

“Communal Areas” means the landscaped areas (hard and soft landscaped) grounds and exterior parts of the Development as shown hatched yellow on the Plan or such other areas substituted therefore or included therewith during the Future Period

“Parking Space” means the parking space shown edged/hatched blue and numbered 88 on the Plan but only to the extent that it includes the airspace above the Parking Space to a height of 3m and excludes the land below the surface of the Parking Space

“Visitor Parking Spaces” means the area designated for use by persons visiting the Development from time to time

The Fourth Schedule

5. The right for the Tenant and the tenant or occupiers of the Demised Premises his or their employees and visitors (in common with all other persons have the like right) to go pass and re-pass at all times and for all purposes of access to and egress from the Demised Premises only with or without vehicles (as appropriate) over and along the Accessways provided that access on foot only is permitted over the footpaths comprising the same

6. The right to use the Communal Areas subject to Estate Regulations

7. The right for the Tenant to park one private roadworthy and fully licensed motor vehicle of not more than three tonnes on or at the Parking Space together with the necessary rights of passage on foot over such parts of the Development as are reasonably necessary for passage between the Parking Space and the Building

9. Subject to paragraph 3.2 of the Fifth Schedule the non-exclusive right for the Tenant and the tenant or occupiers of the Demised Premises his or their employees and visitors (in common with all other person having the like right) to park private roadworthy and fully licensed motor vehicles in any of the Visitor Parking Spaces on a first come first served basis

The Eighth Schedule (Part B)

2. Not to use the Parking Space for any purpose other than for the purpose of parking a private motor vehicle not exceed three tonnes in gross laden weight or motor cycles and not to park or allow to be parked any motor vehicle wheeled vehicle or other form of transport on any other part of the Development other than in accordance with the Fourth Schedule to this Lease

12. Not to use the Communal Areas other than for the purposes pursuant to and in accordance with the terms of this Lease and for quiet enjoyment without causing nuisance or annoyance to any other occupiers or owners of the Property

The Ninth Schedule

2. The Tenant paying the Rent and observing and performing the several covenants on his part and conditions herein contained shall peaceably hold and enjoy the Demised Premises and the rights hereby granted during the Term without any lawful interruption from or by the Landlord or any person lawfully claiming under or in trust for it.