Lease Problems - My right of access to my property

[BMWBen]

SP&L always seems to deliver, and I'm struggling to find answers on my own, so here goes...

I've recently bought a property in a managed estate, that has private roads and parking spaces. The management company (I assume acting under the instructions of the residents association who own the freehold) have recently started cracking down on parking and enforcing the covenants in the leases that relate to them. However they seem to have massively over-extended what they're doing.

I own a van (privately, not use for trade) which is not allowed to be parked in my space as there's a clause that says you can't park a commercial vehicle, trailer, horsebox etc on the development. I'm ok with that, even though I don't think that my van specifically is a commercial vehicle. They're now telling me that I can't even drive my van up to the front of my property to load/unload/do anything. They say that me bringing a van into the development is a breach of the covenants in my lease, and that if I load/unload at my property I've "parked" and that that is also not allowed.

The relevant clauses in the lease state:
1. That the management company has the right to create regulations as it may think fit for the preservation of the amenities and general convenience of the occupiers.
2. That the leesee has the right to pass at all times and for all purposes of access to and egress from the premises with or without vehicles over and along the accessways.
Then we have the covenants:
3. Only to park private motor vehicles in the spaces and not to park elsewhere on the development.
4. Not to park a commercial vehicle, horsebox etc etc on any part of the development.


Where does this leave me? They're saying that if I was to get a contractor/delivery/etc this is fine, and they can bring a van onto the site, but if I bring my own van onto the site for any reason I'm in breach of my lease. It seems ridiculous, and I'm pretty sure that point 2 has me covered, but before I tell them to "fking sue me" I'd like to make sure I'm not way off base here.

[surveyor_101]

I would suggest they will struggle to enforce it legally. If it's only states parking a commercial vehicle in your space you should be able to drive up and load/unload. However since the new kid on the bloc I would suggest avoiding creating an issue. Might be worth writing to them saying you can use your van for occasional loading etc. Anyone having deliveries will need commercial vehicle access it postman, dhl etc. Point that out but state you don't intend to one regular basis and won't breach the terms by parking your van In your space. That seems reasonable to me and in keeping with the terms under which the purchase was made.

[superlightr]

op - can you post a picture of your ford transit custom?

[ashleyman]

I think you need to contact the management co. or residents association and find out what is classed as a commercial vehicle.

If I remember correctly UK law is that any vehicle is a commercial vehicle if it has a weight of 1 tonne or more, or an unladen weight of 3 tonnes. According to this, that means that something like a LR Discover is considered a commercial vehicle even though it isn't.

Start by finding out what is their definition. If your van has windows then it could be easier to prove it isn't a commercial vehicle.

At my home, which is part of a block of flats, any home owner has the right to be part of the residents association or be a management company director. Then they get to choose what does and does not happen to the property. If the same option is for you, maybe you can join or buy in and then you get a say on what changes are made. We don't have a clause for no commercial vehicles yet, but I know it's coming...

[elanfan]

Register your van as BmwBen Contractors then it's not yours and you have a contractor on site. Job jobbed!

[BMWBen]

surveyor_101 said:

I would suggest they will struggle to enforce it legally. If it's only states parking a commercial vehicle in your space you should be able to drive up and load/unload. However since the new kid on the bloc I would suggest avoiding creating an issue. Might be worth writing to them saying you can use your van for occasional loading etc. Anyone having deliveries will need commercial vehicle access it postman, dhl etc. Point that out but state you don't intend to one regular basis and won't breach the terms by parking your van In your space. That seems reasonable to me and in keeping with the terms under which the purchase was made.

That was my initial approach, but it's been met with a firm no that's been repeated without any justification other than "you are not allowed to bring a commercial vehicle onto the site" and no desire for a discussion about what a ridiculous situation it creates, so I need to work out what my legal position is.

The lease does say that parking a commercial vehicle anywhere on the estate is not allowed and they are stating that loading/unloading is parking and this does not affect my right of access with a vehicle. I disagree.

[TooMany2cvs]

BMWBen said:

I've recently bought a property in a managed estate...

...I own a van (privately, not use for trade)...
...even though I don't think that my van specifically is a commercial vehicle.

The relevant clauses in the lease state:
...
4. Not to park a commercial vehicle, horsebox etc etc on any part of the development.

Their argument is that it's the vehicle that's commercial, not the ownership/use.
Your argument appears to be that it's the ownership/use - which would mean everybody's company Focus or Golf would be a "commercial vehicle", while your van isn't.
And you have to admit that's a bit silly, right...?

So it does appear that you're fairly bang-to-rights on the lease...

And, yes, you are parking it - unless you're throwing the contents at an open door while it cruises slowly by?

Which begs the question why buy a property that doesn't allow you to do what you want to do? It's not like it's the only place that was for sale, right?

[Rick101]

It'll be one miserable bugger that's complained. We have one here and he's not the most popular chap on the estate.
Management companies are difficult to deal with. It's unlikely you'll be able to speak to a person with sense, you'll just get computer says no mentality.

Plenty of vans on our estate though I'm sure we have a similar covenant.
I'd get proper legal advice if it's going to be an issue. I can only think that you confirm to them it is a private vehicle and has not used in business.

Are you sure there are no other vans or signwritten vehicles on your estate, or in fact any estate run by this management company?

[BMWBen]

TooMany2cvs said:

BMWBen said:

I've recently bought a property in a managed estate...

...I own a van (privately, not use for trade)...
...even though I don't think that my van specifically is a commercial vehicle.

The relevant clauses in the lease state:
...
4. Not to park a commercial vehicle, horsebox etc etc on any part of the development.

Their argument is that it's the vehicle that's commercial, not the ownership/use.
Your argument appears to be that it's the ownership/use - which would mean everybody's company Focus or Golf would be a "commercial vehicle", while your van isn't.
And you have to admit that's a bit silly, right...?

So it does appear that you're fairly bang-to-rights on the lease...

And, yes, you are parking it - unless you're throwing the contents at an open door while it cruises slowly by?

Which begs the question why buy a property that doesn't allow you to do what you want to do? It's not like it's the only place that was for sale, right?

Actually that's not my argument at all. I don't want to park it in my space and I'm fully on board with the reasons why they don't want that. What I don't understand is why I can't drive it up to my property to unload something, but someone else can. And also how it doesn't break the right of access to my property that I have in the lease.

Let me explain:
1. I pay someone else to bring their van in and park it outside my property to collect an old washing machine and dispose of it.
2. I use my own van to do the same.

1 is apparently permitted, 2 is not.

Edited by BMWBen on Tuesday 17th May 08:51

[BMWBen]

Rick101 said:

It'll be one miserable bugger that's complained. We have one here and he's not the most popular chap on the estate.
Management companies are difficult to deal with. It's unlikely you'll be able to speak to a person with sense, you'll just get computer says no mentality.

Plenty of vans on our estate though I'm sure we have a similar covenant.
I'd get proper legal advice if it's going to be an issue. I can only think that you confirm to them it is a private vehicle and has not used in business.

Are you sure there are no other vans or signwritten vehicles on your estate, or in fact any estate run by this management company?

There is a signwritten vehicle (car) parked, which they seem to have given an exemption from this rule to as by their own definition of commercial vehicle, it is one. I would also query whether if delivering/loading counts as parking, and as a leaseholder, your agents (i.e. someone you have paid to deliver/collect or is otherwise acting under your control) are also bound by the covenants in your lease, then nobody is allowed any courier deliveries...

[TooMany2cvs]

BMWBen said:

What I don't understand is why I can't drive it up to my property to unload something, but someone else can.

Because your lease binds you. It doesn't bind a courier or a man-and-van or the bin wagon. They didn't agree to abide by the terms of any such lease - you did.

Let's say the management agree it's OK for you to take your van up to the building and load it every now and then. What if your new neighbour then asks to load his every day? Or the next new neighbour decides that, since it's OK to load the van there every day, it's OK to park it in the bays for an hour or two. Or overnight.

BMWBen said:

And also how it doesn't break the right of access to my property that I have in the lease.

Because you do have the right of access. Just not in that vehicle, any more than you could in a 7.5t truck or an articulated wagon or a Harrier or a Chieftain.

[TooMany2cvs]

BMWBen said:

There is a signwritten vehicle (car) parked, which they seem to have given an exemption from this rule to as by their own definition of commercial vehicle, it is one.

You haven't quoted how the lease defines commercial vehicle.

Do you know they have exempted it, rather than simply they aren't aware of it because nobody's complained?

[BMWBen]

TooMany2cvs said:

BMWBen said:

What I don't understand is why I can't drive it up to my property to unload something, but someone else can.

Because your lease binds you. It doesn't bind a courier or a man-and-van or the bin wagon. They didn't agree to abide by the terms of any such lease - you did.

Let's say the management agree it's OK for you to take your van up to the building and load it every now and then. What if your new neighbour then asks to load his every day? Or the next new neighbour decides that, since it's OK to load the van there every day, it's OK to park it in the bays for an hour or two. Or overnight.

BMWBen said:

And also how it doesn't break the right of access to my property that I have in the lease.

Because you do have the right of access. Just not in that vehicle, any more than you could in a 7.5t truck or an articulated wagon or a Harrier or a Chieftain.

1. My lease binds me and anyone else who's acting on my behalf. I can't ignore the rules in the lease about structural changes to the property because they're carried out by a builder working for me and not me directly. So if your interpretation is correct, then no, you cannot have a courier come to your property under your instruction according to the lease.

2. The right of access specifically says "with or without vehicles". It doesn't say "only in private cars" or, "not with a commercial vehicle". It also says for any purpose, which in this case is to "collect stuff from my property". If it's something that you couldn't collect *without* a van, then it feels very much like my right of access is being refused.

Edited by BMWBen on Tuesday 17th May 09:22

[BMWBen]

TooMany2cvs said:

BMWBen said:

There is a signwritten vehicle (car) parked, which they seem to have given an exemption from this rule to as by their own definition of commercial vehicle, it is one.

You haven't quoted how the lease defines commercial vehicle.

Do you know they have exempted it, rather than simply they aren't aware of it because nobody's complained?

It doesn't define it. They've subsequently create a set of "parking regulations" that do define it and by their chosen definition, my van is a commercial vehicle. I'm not arguing with that however, the intention is to stop the estate turning into a van/lorry park, and that's perfectly reasonable. They've definitely noticed this other car, this is something that they're being very active about at the moment, and for a while, when it was parked the sign writing was being covered up (and it no longer is).

Edited by BMWBen on Tuesday 17th May 09:21

[paintman]

If that's the terms of the lease then it appears you're stuffed.
Common for conditions in covenants to do the same with caravans & commercial vehicles - main target is vans - on many modern estates. Equally common that many are just ignored & no-one bothers doing anything about it.
Unfortunately you've bought somewhere that does. In the absence of a successful legal challenge appears your choices are sell the property& go somewhere else that does allow commercial vehicles, buy another vehicle that you can park there or find somewhere to park the van off the estate & walk in.
Best to go & see a lawyer that specialises in this sort of thing.

[JQ]

When you say "cracking down" what do you mean? Have they given any indication of what penalty you will suffer should you continue?

My basic understanding is that the penalty would be forfeiture of the lease, which no court in their right mind would permit for such a minor breach. I can't imagine there are any other options available - perhaps one of our friendly lawyers on here could confirm?

If forfeiture is the only remedy, then I'd just carry on as normal and let them send you nasty letters. IANAL, so the above may be complete bks.

[BMWBen]

JQ said:

When you say "cracking down" what do you mean? Have they given any indication of what penalty you will suffer should you continue?

My basic understanding is that the penalty would be forfeiture of the lease, which no court in their right mind would permit for such a minor breach. I can't imagine there are any other options available - perhaps one of our friendly lawyers on here could confirm?

If forfeiture is the only remedy, then I'd just carry on as normal and let them send you nasty letters. IANAL, so the above may be complete bks.

They say that they'll start proceedings for breaching lease covenants, which I assume will be applying for forfeiture of the lease given that there's no monetary loss associated with it. They'll probably start adding legal fees to my service charge as well I expect.

[BMWBen]

paintman said:

If that's the terms of the lease then it appears you're stuffed.
Common for conditions in covenants to do the same with caravans & commercial vehicles - main target is vans - on many modern estates. Equally common that many are just ignored & no-one bothers doing anything about it.
Unfortunately you've bought somewhere that does. In the absence of a successful legal challenge appears your choices are sell the property& go somewhere else that does allow commercial vehicles, buy another vehicle that you can park there or find somewhere to park the van off the estate & walk in.
Best to go & see a lawyer that specialises in this sort of thing.

You misunderstand (I think). I don't want to park in my space, I've got another car that is parked there. I just want to stop for a minute or so to load things into my van which are too large to go into my car or to carry off site to where my van is usually parked, as would apparently be perfectly acceptable if it wasn't my van but someone elses.

[speedking31]

You could try this:

[anothernameitist]

Is it still corret that the van is PLG - Private Light Goods class.

PLG includes cars and vans, if this is correct you've won the case.