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