Lease Problems - My right of access to my property

Lease Problems - My right of access to my property

Author
Discussion

Reg Local

2,676 posts

207 months

Tuesday 17th May 2016
quotequote all
Wear a disguise when you drive your van.

If someone challenges you, pretend you don't speak English.

JQ

5,692 posts

178 months

Tuesday 17th May 2016
quotequote all
BMWBen said:
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.
I would be amazed if they went for forfeiture for such a breach, it would cost a fortune and the likelihood of them getting it tiny. I'd also be amazed if they could apply the legal costs to only your service charge (check your lease), they'd have to spread the cost through everyone, thereby diluting the cost to you significantly. Again IANAL, get advice.

I suspect they're trying to scare you - with plenty of people I'm sure it will work.

Out of interest how many times a week are you loading and unloading, and what is it that's going in and out?

BMWBen

Original Poster:

4,899 posts

200 months

Tuesday 17th May 2016
quotequote all
speedking31 said:
You could try this:
Best suggestion so far... I might forward it on and suggest a compromise.

BMWBen

Original Poster:

4,899 posts

200 months

Tuesday 17th May 2016
quotequote all
JQ said:
BMWBen said:
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.
I would be amazed if they went for forfeiture for such a breach, it would cost a fortune and the likelihood of them getting it tiny. I'd also be amazed if they could apply the legal costs to only your service charge (check your lease), they'd have to spread the cost through everyone, thereby diluting the cost to you significantly. Again IANAL, get advice.

I suspect they're trying to scare you - with plenty of people I'm sure it will work.

Out of interest how many times a week are you loading and unloading, and what is it that's going in and out?
Interesting, I'll check my lease on that one...

It's probably less than 3 times a week if I'm guessing high, more like 1.5 over the course of a year? I'm loading things like Windsurf boards and masts, and am also going to be renovating so will be removing old kitchen cabinets, flooring etc.

For example this weekend I was away at a sailing event, so I had to drive up to load toolboxes, kitbags, sails, and then drop them off when I returned, but the van hadn't been up to the property for over a week before then. The duration of each load/unload was less than 5 minutes.

surveyor

17,768 posts

183 months

Tuesday 17th May 2016
quotequote all
JQ said:
BMWBen said:
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.
I would be amazed if they went for forfeiture for such a breach, it would cost a fortune and the likelihood of them getting it tiny. I'd also be amazed if they could apply the legal costs to only your service charge (check your lease), they'd have to spread the cost through everyone, thereby diluting the cost to you significantly. Again IANAL, get advice.

I suspect they're trying to scare you - with plenty of people I'm sure it will work.

Out of interest how many times a week are you loading and unloading, and what is it that's going in and out?
+1 on this. I'd be more worried about them getting parking control in and bombarding you with tickets to fight off.

BMWBen

Original Poster:

4,899 posts

200 months

Tuesday 17th May 2016
quotequote all
surveyor said:
JQ said:
BMWBen said:
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.
I would be amazed if they went for forfeiture for such a breach, it would cost a fortune and the likelihood of them getting it tiny. I'd also be amazed if they could apply the legal costs to only your service charge (check your lease), they'd have to spread the cost through everyone, thereby diluting the cost to you significantly. Again IANAL, get advice.

I suspect they're trying to scare you - with plenty of people I'm sure it will work.

Out of interest how many times a week are you loading and unloading, and what is it that's going in and out?
+1 on this. I'd be more worried about them getting parking control in and bombarding you with tickets to fight off.
Well, they do already have parking control, but they only come round once per day (if that) so I'd be very surprised if that coincided with the 2 minutes my van was there. Also, they'd just treat it like they would any other van I expect, and assume it's making a delivery and leave it alone!

paintman

7,669 posts

189 months

Tuesday 17th May 2016
quotequote all
BMWBen said:
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.
I don't.
You want to stop your van for whatever period of time to load & unload.
They say they consider your van is parked whilst doing this.
One of the covenants says you can't park commercial vehicles on any part of the development.
Consequently you are in breach of the covenant.

Seems very petty (although I can see the argument as do you that if they don't do it then people are just going to park what they like) but unfortunately as said earlier you get those on committees that have nothing better to do and are exactly that.





surveyor

17,768 posts

183 months

Tuesday 17th May 2016
quotequote all
I'd be very tempted to just reply that

I will use my right of access for loading and unloading. I shall be parking for no more time than I need for those purposes.

I consider this to be reasonable. Should the management company take any steps to forfeit my lease on grounds related to this access I will obviously resist and on success will seek to recover my legal fee's from the company.


Forfeiture is a significant action, and in the residential world needs legal action. Also your breach is simple to remedy if it ever comes to that. On top of that it's not management company vs you. It's management company vs you, and your lenders lawyers.

Jim1556

1,771 posts

155 months

Tuesday 17th May 2016
quotequote all
I can't believe this is even an issue!

Seriously, the guy wants to load surfboards n stuff a few times a week for a few minutes at a time!

I'd be telling them to Foxtrot Oscar!

If it ever gets near legal action (which it won't), cut some holes and put perspex windows in, hey presto, camper...

I could [almost] understand if it was a Mayfair address, but even then! confused

fk 'em!

surveyor_101

5,069 posts

178 months

Tuesday 17th May 2016
quotequote all
BMWBen said:
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.
Seems completely unreasonable does any other van or commercial vehicle stop in the land? Royal Mail?

These residents committy can be so anal it's unreal. Friend living in flat and the head of their comity went round reading the riot act as he had a towel drying on his balcony and only a table and chairs and a few pot plants were permitted no washing .She even took offence to children have a toy on them, old witch.

Then her grandparents buy expensive ground floor flat in upmarket actively elderly block. They get told off for allowing non vehicular traffic through the main electric gate rather then the pedistrian gate. Her grandad started using the lift to go upstairs and enjoy the glass atriums view and they complained ground floor residents don't need to put additional wear on the lift. He pointed out he pays the same maintence charged for the lift and they backed down.

Vroom101

828 posts

132 months

Tuesday 17th May 2016
quotequote all
BMWBen said:
... my 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.
There are distinct rules in the Highway Code concerning parking and loading, and there is a clear distinction between the two, eg. you aren't allowed to park on double yellow lines, but you are allowed to load or unload.

As far as I can see it, you are not breaking terms of your lease as, going by the distinctions in the Highway Code (which is the most 'reasonable' set of rules you could expect to adhere to with regard to such matters), you are not parking your van. It is the management company that has taken it upon itself to make up the rule that loading/unloading is the same as parking.

This legislation may be of some use to you. The Unfair Terms In Consumer Contacts has a section on tenancy, which covers leases.

https://www.google.co.uk/url?sa=t&source=web&a...

There is a test on 'fairness' under which there is this paragraph:

Regulation 5 (1) provides that a standard term is unfair 'if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' obligations arising under the contract, to the detriment of the consumer'.

Now, I'm not a lawyer, but it could be argued that the management acting in an unfair way.

Also, the part of your lease which states: "...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." is, in as many words, saying "we can make stuff up as we go along", which could also be argued to be an unfair term.

If you really want to fight this, I'd contact a lawyer specialising in property law, and I suspect they would be able to squish this problem with a well worded letter.

Good luck. The management company are being nobs smile

mph1977

12,467 posts

167 months

Tuesday 17th May 2016
quotequote all
anothernameitist said:
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.
private and LIGHT GOODS vehicle

also fewer and fewer vehicles on the road are PLG ... i.e. anything registered since emissions based VED came in isn't , it;s either car (emission class) or light van (emission class)

BMWBen

Original Poster:

4,899 posts

200 months

Wednesday 18th May 2016
quotequote all
Jim1556 said:
I can't believe this is even an issue!

Seriously, the guy wants to load surfboards n stuff a few times a week for a few minutes at a time!

I'd be telling them to Foxtrot Oscar!

If it ever gets near legal action (which it won't), cut some holes and put perspex windows in, hey presto, camper...

I could [almost] understand if it was a Mayfair address, but even then! confused

fk 'em!
I may gave sent the nice lady at the management company a set of pictures containing vans and "not actually vans" (VW shuttles, ford tourneos) with blacked out windows that look exactly the same, with a threat to trade in my current one for a permitted one and start parking it on site laugh

Jim1556

1,771 posts

155 months

Wednesday 18th May 2016
quotequote all
BMWBen said:
I may gave sent the nice lady at the management company a set of pictures containing vans and "not actually vans" (VW shuttles, ford tourneos) with blacked out windows that look exactly the same, with a threat to trade in my current one for a permitted one and start parking it on site laugh
Good man! They don't like it up 'em! thumbup

CAPP0

19,533 posts

202 months

Wednesday 18th May 2016
quotequote all
surveyor said:
I'd be very tempted to just reply that

I will use my right of access for loading and unloading. I shall be parking for no more time than I need for those purposes.

I consider this to be reasonable. Should the management company take any steps to forfeit my lease on grounds related to this access I will obviously resist and on success will seek to recover my legal fee's from the company.


Forfeiture is a significant action, and in the residential world needs legal action. Also your breach is simple to remedy if it ever comes to that. On top of that it's not management company vs you. It's management company vs you, and your lenders lawyers.
If you do this, please don't say "fee's".

speedking31

3,543 posts

135 months

Wednesday 18th May 2016
quotequote all
surveyor said:
... I shall be parking for no more time than I need for those purposes.
I would suggest not mentioning parking at all in any communication. Use stationery or unloading.

surveyor

17,768 posts

183 months

Wednesday 18th May 2016
quotequote all
speedking31 said:
surveyor said:
... I shall be parking for no more time than I need for those purposes.
I would suggest not mentioning parking at all in any communication. Use stationery or unloading.
He;s gonna be stopped loading stuff, if he's not moving what else is he doing?

esxste

3,665 posts

105 months

Wednesday 18th May 2016
quotequote all
IANAL, so get expert opinon;

How is a commercial vehicle defined in the lease? The type of vehicle should ultimately be irrelevant. A private hire car (taxi) for example is a commercial vehicle, because its used for business. If your insured only for Social, Domestic, Pleasure and commuting on the van, and it has no branding, then its a private vehicle. It ultimately sounds like a vague and unenforceable term; do company cars count as commercial?

Beyond this, I agree with the assesment on loading/unloading vs parking. The highway code would likely be used as an authoritative definition by a court.





Edited by esxste on Wednesday 18th May 11:39

slow_poke

1,855 posts

233 months

Wednesday 18th May 2016
quotequote all
Somewhere out there is Cade law on parking on a right of way which held parking is not allowed, but stopping to load/unload is permissible.

Relevant to you?

Vroom101

828 posts

132 months

Wednesday 18th May 2016
quotequote all
surveyor said:
speedking31 said:
surveyor said:
... I shall be parking for no more time than I need for those purposes.
I would suggest not mentioning parking at all in any communication. Use stationery or unloading.
He;s gonna be stopped loading stuff, if he's not moving what else is he doing?
It's the definition between 'parking' and 'loading' which is causing the hassle here. The Highway Code correctly differentiates between the two, whereas the management company can't seem to comprehend that difference. Parking a commercial vehicle is prohibited in the OP's lease, but there is no such restriction for loading/unloading. However the management company have wrongly lumped the two together, and need to be shown the error of their ways biggrin