Advice needed - no permit provided, ticketed while parked in allocated space.

[KHarHar]

Hello everyone,

I hope that this is not too long, and it risks straying away from strict parking law. Please remove if not appropriate.

1.5 months ago I moved into a new flat. As part of this flat, I was given an allocated parking space that corresponds to my flat number. This was confirmed by the estate agent in writing and through various documents exchanged before move in.

I inquired directly about whether or not the space was included in my lease, and this was confirmed. At no point did the estate agent mention a parking permit, nor did I ever receive a permit when I moved in. The only mention of a permit in my tenancy agreement is a generic clause stating that I must return any parking permits when I leave. The allocated space is mentioned in the inventory, but no mention of a permit.

Last Tuesday (one week ago) I received a parking fine from P4Parking for failure to display a valid permit. The residents parking area recently came under management of P4Parking, from what I gather earlier this year prior to my moving in, when I think my flat was vacant. There is (new) signage in the parking area.



https://i.postimg.cc/Cx43pX9B/image-3.png


I have appealed the ticket, and reached out to building management who have informed me that permits were delivered 'by post/hand'.

I mentioned to the real estate agent that they had a duty of care to provide me with a permit (or details of) permits that are required or my quiet enjoyment of the property. I asked for them to get in touch with the management to arrange a new permit and to get the PCN cancelled, or to pay for the ticket on my behalf.

They responded with the following:

"Dear _____,

Thank you for your email.

Unfortunately, we will not be able to make payment towards the parking ticket you have received. As the vehicle was parked without a valid permit being displayed, we would recommend continuing to contact the parking company directly to explain the circumstances and ask whether they would be willing to waive the charge.

This is the first time we have received a request from you regarding a parking permit, despite you having been living at the property for some time. We do not normally deal directly with parking permits; however, we appreciate that you would now like to get this arranged and I will be contacting the block management company to find out how we can obtain a permit for your allocated parking space."

I've had no contact with them since, and they've ghosted me on a number of issues in the past.

I've continued some back and forth, and the appeal has not been responded to yet, but I was wondering what my best approach to this would be going forward?

I would rather not pay as I believe that the Estate Agent has a duty to provide me with a permit if required or to inform me of it.

Any advice would be appreciated. Thank you.

[b789]

@KHarHar, before I can sensibly advise you any further, I need to know exactly what you said in the appeal to P4Parking.

The important issue is whether you identified yourself as the driver. If you appealed saying things such as "I parked", "I did not have a permit", "I was not given a permit" or otherwise made it clear that you were the person driving, then you may have shot yourself in the foot on one potentially useful defence. P4Parking would no longer need to rely on Schedule 4 of the Protection of Freedoms Act 2012 to transfer liability from an unknown driver to the registered keeper, because they would already know who the driver was.

That would not make the charge automatically valid, because there is still a potentially much stronger tenancy/primacy argument here. If your tenancy or associated documents grant you the right to use that specific allocated space, and do not make that right conditional upon displaying a permit, then the later introduction of P4Parking and its permit scheme does not necessarily override the rights already granted to you.

The agent's response also rather misses the point. This is not simply a case of "you parked without displaying a permit". If a permit was necessary to exercise the parking right included with the tenancy, then somebody should have ensured that you were provided with one or at least told that one was required.

So, before going any further, please post:

1. The exact wording of the appeal you submitted to P4Parking.
   
2. The relevant tenancy wording dealing with the parking space, permits and any obligation to comply with estate regulations.
   
3. The email or other document confirming that the numbered parking space was included with the flat.
   

Once I have those, I can tell you much more accurately where you stand.

[KHarHar]

@KHarHar, before I can sensibly advise you any further, I need to know exactly what you said in the appeal to P4Parking.

The important issue is whether you identified yourself as the driver. If you appealed saying things such as "I parked", "I did not have a permit", "I was not given a permit" or otherwise made it clear that you were the person driving, then you may have shot yourself in the foot on one potentially useful defence. P4Parking would no longer need to rely on Schedule 4 of the Protection of Freedoms Act 2012 to transfer liability from an unknown driver to the registered keeper, because they would already know who the driver was.

That would not make the charge automatically valid, because there is still a potentially much stronger tenancy/primacy argument here. If your tenancy or associated documents grant you the right to use that specific allocated space, and do not make that right conditional upon displaying a permit, then the later introduction of P4Parking and its permit scheme does not necessarily override the rights already granted to you.

The agent's response also rather misses the point. This is not simply a case of "you parked without displaying a permit". If a permit was necessary to exercise the parking right included with the tenancy, then somebody should have ensured that you were provided with one or at least told that one was required.

So, before going any further, please post:

1. The exact wording of the appeal you submitted to P4Parking.
   
2. The relevant tenancy wording dealing with the parking space, permits and any obligation to comply with estate regulations.
   
3. The email or other document confirming that the numbered parking space was included with the flat.
   

Once I have those, I can tell you much more accurately where you stand.

Again, many many thanks for your help

1. The text of my appeal is as follows: 

"Dear Sir/Madam,

I am writing to formally appeal the above Parking Charge Notice issued to my vehicle while parked in Space x.xx

I am the legal tenant of Flat xxx, having recently moved into the property. Space xxx is allocated exclusively to my property, as confirmed in writing by my letting agent prior to move-in (see attached email confirmation). Furthermore, my tenancy agreement explicitly references the requirement to return parking permits at the end of the tenancy, confirming that parking rights are attached to this property.

As a newly moved-in resident, I was not handed the physical permit by the letting agent upon handover, an administrative error that is currently being rectified. As the contractually authorized occupier of this allocated space, I hold primary right of occupation, and no loss or breach of contract has occurred to the landowner.

Please find attached:

Written email confirmation from the letting agent confirming Space x is allocated to my tenancy.xx

The relevant section of my tenancy agreement referencing parking permits.

Proof of my tenancy/residency.

Given that I am the legitimate resident with rights to Space xxx, I request that this Parking Charge Notice be canceled with immediate effect, and that my vehicle registration be whitelisted while my physical permit is reissued.

Yours faithfully,"


They then sent an email asking for more evidence, which I responded to with:

"Thank you for your correspondence requesting evidence regarding my appeal for Space 169.

As stated in my initial appeal, I am the new legal tenant of Flat XXX (Space XXX). As a newly moved-in resident, the physical permit was omitted at handover by the estate agent [ESTATE AGENT] and is currently being reissued via Building Management.

As evidence that I am the contractually authorized user of Space 169 and hold primary right of occupation, please find attached:

Written Pre-Tenancy Confirmation: Email from [ESTATE AGENT] explicitly confirming Space XXX is allocated to my property.

Tenancy Agreement: Copy of my tenancy agreement showing my residency at Flat XXX and the parking permit return clause.
Building Management Case Ref: Proof that a ticket has been opened with Building Management to issue the replacement permit and authorize cancellation.

Given that I am the verified resident with exclusive rights to Space XXX, I ask that this charge be canceled or placed on hold while Building Management completes the permit reissue."

2. The relevant tenancy wording dealing with the parking space, permits and any obligation to comply with estate regulations

This is where it gets somewhat tricky, as there isn't an explicit statement that I am renting the space and my flat. Parking permits are mentioned in my tenancy agreement, but not explicitly in relation to the flat. The parking space is mentioned in the inventory document sent over by the Real Estate agent however, which I will include details of. Please find below the clauses from my tenancy agreement that are relevant (possibly) or refer to parking:

Tenancy agreement:
"*The Property, shall mean the property situated at [ADDRESS] , together with the fixtures, fittings, furniture and effects  therein, and more particularly specified in the Inventory signed by the Tenant, and all  grounds. It shall include the right to use, in common with others, any shared rights of  access, stairways, communal parts, paths and drives."

Relevant Inventory: 

"Keys Issued: Pedestrian door code .................................................................................. (CODE)
Car Park gate code ..................................................................................... (CODE)
Flat entrance ............................................................................................... 2 Yale – 2 Chubb
Miscellaneous .............................................................................................. 1 Chubb
FB2 key ....................................................................................................... 2
FB1 key……………………………………………………………………………..1
Parking space ............................................................................................. (PARKING SPACE NUMBER)"


3. The email 
The email thread in question is me asking for confirmation that the space is included with the flat, to which the agent responded:

"Regarding parking, I have been informed the property comes with an allocated parking space within the complex."


I hope that this helps. Thank you very much.

[b789]

@KHarHar, yes, that answers the important questions and, importantly, I do not think you have identified the driver in either of those appeals.

You consistently describe yourself as the tenant/resident and refer to "my vehicle", but you never say that you were driving or that you parked it. Ownership/keeper status and driver identity are not the same thing. So, unless there is something else you have sent them which identifies the driver, I would continue on the basis that the driver has not been identified. Do not now volunteer that information.

The tenancy position is also rather better than I initially feared. The tenancy defines "the Property" by reference to the contents of the Inventory, and that Inventory expressly identifies Parking space [number]. You also have the agent's pre-tenancy confirmation that the property "comes with an allocated parking space within the complex". Taken together, that is useful evidence that use of that particular space formed part of what was granted with the tenancy.

What I would want to check next is the exact wording of the tenancy clause dealing with parking permits, particularly the clause requiring permits to be returned at the end of the tenancy. The crucial question is whether anywhere in the tenancy you are actually required to display a permit, comply with a third-party parking scheme, or pay parking charges for failing to do so. A clause merely requiring any permit to be returned when the tenancy ends is not the same thing.

I would also slightly temper some of the wording used in your original appeal. "No loss or breach has occurred" is not particularly helpful because private parking charges do not depend upon the operator proving financial loss. Likewise, I would not rest the argument solely on a broad assertion of "primary right of occupation". The stronger point is much more concrete: your tenancy documentation and inventory appear to grant you use of this specific allocated parking space, and we need to establish whether that grant contains any condition requiring display of P4Parking's permit.

So please post the full permit-related clause from the tenancy. Subject to what that says, you potentially have both the tenancy/parking-right argument and, because the driver appears not to have been identified, any applicable keeper-liability arguments still available.

[KHarHar]

@KHarHar, yes, that answers the important questions and, importantly, I do not think you have identified the driver in either of those appeals.

You consistently describe yourself as the tenant/resident and refer to "my vehicle", but you never say that you were driving or that you parked it. Ownership/keeper status and driver identity are not the same thing. So, unless there is something else you have sent them which identifies the driver, I would continue on the basis that the driver has not been identified. Do not now volunteer that information.

The tenancy position is also rather better than I initially feared. The tenancy defines "the Property" by reference to the contents of the Inventory, and that Inventory expressly identifies Parking space [number]. You also have the agent's pre-tenancy confirmation that the property "comes with an allocated parking space within the complex". Taken together, that is useful evidence that use of that particular space formed part of what was granted with the tenancy.

What I would want to check next is the exact wording of the tenancy clause dealing with parking permits, particularly the clause requiring permits to be returned at the end of the tenancy. The crucial question is whether anywhere in the tenancy you are actually required to display a permit, comply with a third-party parking scheme, or pay parking charges for failing to do so. A clause merely requiring any permit to be returned when the tenancy ends is not the same thing.

I would also slightly temper some of the wording used in your original appeal. "No loss or breach has occurred" is not particularly helpful because private parking charges do not depend upon the operator proving financial loss. Likewise, I would not rest the argument solely on a broad assertion of "primary right of occupation". The stronger point is much more concrete: your tenancy documentation and inventory appear to grant you use of this specific allocated parking space, and we need to establish whether that grant contains any condition requiring display of P4Parking's permit.

So please post the full permit-related clause from the tenancy. Subject to what that says, you potentially have both the tenancy/parking-right argument and, because the driver appears not to have been identified, any applicable keeper-liability arguments still available.

That is certainly encouraging! Thanks for the insight and advice. I'll refrain from any sort of loss or breach language going forward, I perhaps got a bit ahead of myself with that  

Here are all of the mentions of a permit in my agreement:

Deposit return clause:

"Subject to The Deposit Protection Service (The DPS) terms and conditions, the Deposit  will be refunded, less any deductions, once the following have been completed:
1. the tenancy has ended and possession of the Property has been returned to 
the Landlord and
2. all keys, access devices, remote controls and parking permits have been 
returned and
3. both parties have confirmed their acceptance of any Deposit deductions"

Return of property:

"Not change the locks (or install additional locks) to any doors in the Property, nor make  additional keys for the locks without permission. All keys, access devices, remote controls  and parking permits are to be returned when possession of the Property is returned to the  Landlord."

Similar clause in Tenancy section:

"Return all keys, access devices, remote controls and parking permits for the Property, on  the last day of possession (or sooner by mutual arrangement)."

Notably, there is nothing in the tenancy agreement that states that I must display the permit, comply with any third-party scheme or pay any charges to do so. 

There is a clause that reads: 

"Perform and observe all valid obligations, a copy of which has been provided to the  Tenant, of any headlease or covenant on the Property, save for those relating to the  payment of rent or service charges, and to refund to the Landlord all losses, reasonably  incurred, in relation to any breach of these obligations."

However no such obligations were communicated to me in any way - including in the supporting documents that they sent after signing of the agreement (they were the inventory, gas safety cert etc etc).

[b789]

@KHarHar, that is useful and actually helps. On what you have quoted, there is nothing in the tenancy requiring you to display a permit, participate in P4Parking's scheme, or pay a third-party parking charge for failing to display one.

The clause about complying with headlease/covenant obligations also appears qualified by the words "a copy of which has been provided to the Tenant". If no such parking-related obligations were ever provided to you, that clause does not obviously assist the landlord or P4Parking in imposing some undisclosed permit regime after the event.

However, I still need you to check the tenancy agreement for all references to parking, not merely references to "parking permits".

Please search the agreement for terms such as parking, car, vehicle, motor vehicle, space, garage, bay, estate regulations, regulations, communal areas, common parts, management company, headlease, covenant and allocated space.

What I am trying to establish is whether there is any clause anywhere which:

• expressly grants or restricts parking rights;
  
• identifies a particular parking space or bay;
  
• requires vehicles to display a permit;
  
• requires compliance with parking regulations or a managing agent's rules;
  
• permits the landlord/managing agent to introduce or vary such regulations during the tenancy; or
  
• makes parking conditional upon compliance with any third-party scheme.
  

So far, the documents you have quoted are favourable: the inventory identifies a specific parking space, the agent expressly confirmed before the tenancy that the property came with an allocated parking space, and the tenancy contains no permit-display obligation that we have yet seen.

But I want the complete parking-related picture before drawing a firm conclusion.

[KHarHar]

@KHarHar, that is useful and actually helps. On what you have quoted, there is nothing in the tenancy requiring you to display a permit, participate in P4Parking's scheme, or pay a third-party parking charge for failing to display one.

The clause about complying with headlease/covenant obligations also appears qualified by the words "a copy of which has been provided to the Tenant". If no such parking-related obligations were ever provided to you, that clause does not obviously assist the landlord or P4Parking in imposing some undisclosed permit regime after the event.

However, I still need you to check the tenancy agreement for all references to parking, not merely references to "parking permits".

Please search the agreement for terms such as parking, car, vehicle, motor vehicle, space, garage, bay, estate regulations, regulations, communal areas, common parts, management company, headlease, covenant and allocated space.

What I am trying to establish is whether there is any clause anywhere which:

• expressly grants or restricts parking rights;
  
• identifies a particular parking space or bay;
  
• requires vehicles to display a permit;
  
• requires compliance with parking regulations or a managing agent's rules;
  
• permits the landlord/managing agent to introduce or vary such regulations during the tenancy; or
  
• makes parking conditional upon compliance with any third-party scheme.
  

So far, the documents you have quoted are favourable: the inventory identifies a specific parking space, the agent expressly confirmed before the tenancy that the property came with an allocated parking space, and the tenancy contains no permit-display obligation that we have yet seen.

But I want the complete parking-related picture before drawing a firm conclusion.

Thanks - I'll run through each of the terms that you have mentioned 

• Parking - All of the references to parking are above - there are no others.
  
• Car - None
  
• Vehicle -  the only clause relates to not keeping a variety of non-roadworthy vehicles on the property:
   "Not keep any vehicle that is not validly licensed for use on the highway, any commercial  vehicle, boat, caravan, trailer, hut or shed on the Property."
• Motor Vehicle - none
  
• Space - only refers to loft space and space heater
  
• Garage - only one clause referring to keeping bikes within agreed spaces:
  "Not keep motorcycles, cycles, e-bikes, e-scooters or other similar machinery in any  communal areas, or inside the property, except in any defined outside area or garage."

• Bay - None
  
• Estate Regulations - None
  
• Regulations - Only references are to Gas Safety regulations, electrical device regulations, and home businesses under the Tenant act (or as defined by regulations made under it).
  
• Communal Areas - only the above note on cycles and e-scooters.
  
• Common Part - Obstruction to 
   "Not cause obstruction in any common areas of any building of which the Property forms  a part. The Landlord reserves the right to remove or have removed any such obstruction  and, at their discretion, to charge the reasonable costs, payable on demand, to the Tenant  for so doing."

• Management Company - No mention of management company, only mention of 'company' is insurance related, and no mention of 'management'.
  
• Headlease - Two mentions. One is the above:
  

"Perform and observe all valid obligations, a copy of which has been provided to the  Tenant, of any headlease or covenant on the Property, save for those relating to the  payment of rent or service charges, and to refund to the Landlord all losses, reasonably  incurred, in relation to any breach of these obligations."

Then one really interesting one (potentially) 

"The landlord agrees with the tenant as follows: ... To provide a copy of the insurance and any freehold or headlease conditions affecting the  behaviour of the Tenant."

I don't know if this is the case - but if the parking scheme constitutes a condition of a freehold or headlease, have the Real Estate agent then breached the contract by not providing it to me? Which has then caused me damage through the parking ticket? (possibly getting ahead of myself here).

• Covenant - only the above clause
  
• Allocated space - none.
  

Thanks again for your help and prompts!

[b789]

@KHarHar, that is potentially quite significant, and it strengthens the position rather than weakening it.

The tenancy does not contain any obligation to display a parking permit, comply with P4Parking, or pay a parking charge for failing to display one. More importantly, the only mechanism I can see by which some separate headlease/freehold restriction might be imported into your tenancy is expressly qualified: you are required to observe those obligations "a copy of which has been provided to the Tenant."

You then have the corresponding landlord covenant:

"The landlord agrees with the tenant as follows: ... To provide a copy of the insurance and any freehold or headlease conditions affecting the behaviour of the Tenant."

So if somebody now says that a permit-display requirement derives from the headlease, freehold covenants or estate regulations, the obvious response is: where is it, and when was it provided to you? On your account, it never was.

That also gives you a useful point against the landlord/agent. If the parking scheme is in fact a condition affecting how you may use the allocated parking space, and that condition existed when the tenancy was granted, there is at least an arguable contractual breach in failing to provide it to you. If that breach directly caused you to incur a parking charge, there could potentially be a consequential-loss argument against the landlord. I would not jump straight to claiming the £100 from them yet, because causation and recoverability would depend on the precise documents and circumstances, but the argument is certainly there.

For the P4Parking dispute, however, the more immediate point is stronger: your tenancy documentation appears to give you an allocated parking space, yet contains no permit-display condition at all, while any external headlease/covenant obligation was only to bind you if a copy had been supplied.

I would now write to the agent/landlord and require them to provide:

• the complete freehold/headlease conditions referred to in the tenancy;
  
• any provision requiring a parking permit to be displayed in your allocated space;
  
• when that provision was allegedly supplied to you;
  
• when P4Parking's scheme was introduced; and
  
• the document by which the landlord/managing agent authorised P4Parking to impose charges upon residents using their own allocated spaces.
  

At the moment, the documentary position looks considerably more favourable to you than it did at the outset.

So, in the meantime, you should do three things...

First, as stated above, keep pressing the letting agent/building management in writing for the permit and, separately, for confirmation that they have asked P4Parking to cancel the PCN. I would also ask them to confirm exactly when the permit was supposedly "delivered by post/hand", to whom, and to what address. That may become useful evidence if they are now suggesting the permit was provided when it plainly was not.

Second, obtain and preserve all tenancy evidence in one place: the tenancy agreement, inventory showing the numbered parking space, the pre-tenancy email confirming that the property comes with an allocated space, the correspondence about the missing permit, and the building-management case reference.

Third, do not identify the driver in any further correspondence. The two appeal communications so far do not appear to do that, so there is no reason to throw that protection away now.

So, procedurally we are essentially waiting for P4Parking's initial appeal response. Once it arrives, the next step depends on what they say, whether they attempt to rely on PoFA against the keeper, and what evidence they produce about the alleged permit requirement and their authority to impose it.