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Thursday, 24 November 2016

Residential Parking

There are many residential situations where some form of parking management is desired, but instead of doing their homework properly and engaging a reputable parking company the Management Company bring in one of the bottom-feeders.

These companies, such as Vehicle Control Services, Link Parking and ACE Security have no desire to implement proper parking management and only want to introduce schemes which are hard to use and which allow them to issue as many parking charges to residents as possible.

Typical tactics are a feeding frenzy of ticket issuing on day one of the contract, refusal to issue multiple permits, failure to reissue new permits on expiry of old tickets, reliance on paper permits, and refusal to cancel charges when a mistake has been made.

The reason why management companies introduce most of these schemes is to deter non-residents from using residents' parking spaces. The reality is that most charges are issued to residents. So, what exactly is the situation if a resident gets issued a ticket?

Primacy of Contract

The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the lease is the key document. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.

There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

Clauses in the Lease

Sometimes the situation is clouded by clauses in the lease which might allow management agents the right to impose further conditions.

In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

However, this does mean that the lease needs scrutinising carefully.

It is not sufficient for the operator to simply point to a clause which allows the lease to be varied. They must prove that the lease was so varied, and furthermore varied by the lessor.  The operator isn’t a party to the lease and cannot vary it.

Furthermore, a clause ostensibly permitting variations does not give carte blanche to introduce any terms at whim.  Such variation clauses are normally couched in terms stating that variations can be made for the good management of the site, or similar.  So, if a variation can be shown to be to the significant detriment of the lessees, it should be challenged.  A variation might also conflict with other terms of the lease e.g. the right to peaceful enjoyment.  If so then, again, it should be challenged.

The Parking Contract

If the lease is allowed to be varied, then this new contract will be the one in force. It is important to note that this contract is not the same as the signage on site, which may not even be there at the time. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification. The supreme court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Similarly, it would be hard to establish commercial justification for charging residents hundreds of pounds a year to park in their own parking spaces.

Communal Areas

There may be communal spaces (eg visitor parking) or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas are not necessarily a free-for-all, governed only by the operator signage.  This was central to the Jopson case: an easement over the access roads implies a right to stop and load/unload.  Furthermore, easements are sometimes worded such that they grant lessees the use of communal areas without specifying any uses, in which case a lessee can do what he likes there, including parking.  And in extreme cases (such as one on MSE a while ago where a tenant had been parking in the same place for decades) a long-term resident might have acquired an easement by prescription.

The Signage - Performance

In those instances where there is no primacy of contract it is likely the contract will be formed by signage on site. This will need to be plentiful and easily visible, otherwise no contract can be entered by performance.

In Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance signage at a residential site and the other signage was not visible. The claim was dismissed.

The Signage - No Offer

If the wording of the signage forbids parking, then there is no offer to park and therefore no contract.

This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

Authority to Operate

The operator should be challenged to show their authority to operate.  There will usually be a chain of agents between the lessor and the operator, and it’s quite possible that this chain is broken somewhere in terms of devolving authority to the operator.

Other matters

The signage might not be forbidding. For instance visitor parking might allow 2 free hours for visitors, and would therefore appear to be similar to the Beavis case. In this situation, whether the charge is enforceable would depend on the frequency, visibility and readability of the signage, and whether the charge is made plain to the motorist or hidden in the small print. the Beavis judgment provides guidance on this.

Lastly, the signage might not comply with information requirements laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. This Act came in force after the Beavis case and as yet there is no case law available. However clause 13(1) of the act states that a contract is not binding on a consumer if the correct information is not provided.

Scotland

It’s all very different in Scotland where leaseholds are rare and tenement owners are normally the joint owners of communal areas. Scottish motorist should seek specialist advice.

Data Protection

All this means that residential parking is quite a minefield for everyone, and parking companies are quite likely to get this wrong. If a parking company gets your personal information from the DVLA for a situation where a charge is not valid, then it is highly likely that a breach of data protection laws has taken place. In this situation the case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

Trespass

In Davey v UKPC MR Davey sued UKPC for trespass for placing tickets on his vehicle which was parked on his own land. He won the case and was awarded £150 damages for trespass and £1280.26 in costs.

Happy Parking

The Parking



19 comments:

  1. This is a very helpful guide. What are the relevant information requirements under the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013?

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  2. Could it be that management companies engage bottom feeding parking contractors because they are more likely to grease palms?
    Just musing,

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    1. Indeed, what could be better than a free service together with 10-15% commission on every ticket paid.

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    2. And given that the Management Company becomes aware soon afterwards that it's genuine residents they're making money of the back of, it doesn't say much about their attitude towards working for the benefit of the residents, does it? But hey ho...

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  3. You even have the ridiculous situation of gated car-parks with entry via key-fobs where the management company still insist on bringing in a PPC. They are only going to target residents, as outsiders cannot gain entry.

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  4. You've said here that if new is doesn't apply then the rule of genuine pre-estimate loss applies. That isn't actually correct as the SC has updated this with the commercial justification rule, so any charges that may be classed as a penalty could still in fact be allowed if it's commercially justifiable, and isn't automatically a penalty and not allowed

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    1. If you won't take my opinion on this then perhaps the Jopson case will persuade you. There, His Honour Judge Harris QC ruled that the facts were different to the Beavis case. I agree commercial justification could still be argued but I think it would be hard to commercially justify charging residents huge amounts to park in their own spaces.

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    2. I never said I don't take your opinion, but thought that it is worth noting that there could be a case where it is commercially justifiable. What that is I am not quite sure but no doubt some half decent argument may get tested at some point? I do agree it may be difficult to justify charging residents but perhaps as you have said it could depend on the lease terms. If there is a clause which says the lessee must comply with all reasonable requests from time to time notwithstanding the right to park in an allocated spot, perhaps there could be a commercially justifiable reason there.

      @On Me Bike 09:20
      I am sure everyone on here has a good understanding of beavis, including myself. I read this blog sometimes out of interest and by no means a parking expert. You say that if they can't commercially justify it, then they need to prove that it's a GPEOL, but in fact para 31 of the judgment states that "The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss." Sumption / Neuberger appear to have departed from the term GPEOL though I guess it will still be argued.

      I'm not sure what I am re-reading under The Parking Contract paragraph though it does seem to have been edited

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  5. Anonymous...

    I dare say that most of the regular readers of this blog have a very good understanding of the Supreme Court ruling in Parkingeye vs Beavis. In essence, it established that if a charge is a penalty then it might still be enforceable if it is "commercially justified." If it is not commercially justified then it follows that the penalty will most likely not be enforceable, and the claimant will have to prove that it is a genuine pre-estimate of loss. Re-read the paragraph entitled "The Parking Contract."

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  6. An excellent and timely post.
    Thanks PP!

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  7. I'd just like to add that the amount of damages for breach of the DPA is not set at £750. It may be construed as being too high if only a minor amount of personal injury has happened as a result of the breach but a £750 claim will be reduced in court accordingly if so.

    Also a higher amount is also quite possible. Take for instance someone who has had a credit score hit and has suffered as a result can go for much higher sums. A failed mortgage application with all the stress, embarrassment and distress of that situation could really hit them hard.

    Each case would be considered on its merits in court but a starting sum of £750 is a good thing for the majority of cases even if it does get reduced.

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  8. Apologies if this is a completely naive question. How does genuine pre-estimate of loss work with residential cases? In a car park I assume the charge is related to the fact that if you do not pay for a ticket then someone else could be paying to use that space. In a residential case surely the only person losing out is the resident who is issued that space, and if you are parking in your own space (without a permit) then no one is losing out.

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    1. There never is any genuine pre-estimate of loss in a parking case, and this was confirmed in the Beavis case, because any loss would be the landowners, not the parking company. Instead, now the parking company has to prove commercial justification.

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    2. To see live cases going through the stages I'd recommend dropping into Pepipoo.
      I've posted loads of letters for people to use to claim for breach of the DPA.

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  9. Is there any chance of you providing a blog post with a little more detail regarding Data Protection violations and when it would be worth pursuing this avenue as well as an idiot's guide to doing so?
    I've been pursued by PCM who in turn gave my details as keeper to DRP. PCM's signage was forbidding. I've had 3 or 4 letters back and forth with the two organizations and I have repeatedly pointed that there is/was no contract. Can I pursue PCM under a data protection violation?

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  11. Hi, I've got a quick question after reading your post. So I have received a PCN on windscreen as I was unloading in a private resisdent area. The sign as below. On the sign it says no unauthorised Peking at all times. Then no parking symbol but allows active loading and unloading at bays. ( no bays marked in the area). Can I appear as trespassing / signage that forbids parking? (https://postimg.org/image/n6x8zovyh)

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