Opinion: No parking please
Published by Max Salsbury for 24dash.com in Housing and also in Communities, Legal
Final steps on workplace parking charges
By Nikki Lynds-Xavier, partner, Winckworth Sherwood
Seemingly straightforward and certainly not sexy, the subject of parking is surprisingly hot.
Winckworth Sherwood’s housing management team is regularly inundated with questions on parking from registered providers: what’s allowed, what’s not, how to control it and how to enforce it against tenants and visitors?
The space for car parking is increasingly under pressure in high density areas. Planning requirements encouraging greener developments often now mean that there is frequently no parking available for residents and visitors, or at best limited allocation on a first come first served basis, with a waiting list of tenants keen to have a parking space themselves.
The first decision for a landlord is whether to put the parking restrictions or allocations within the tenancy agreement.
Our advice is, wherever possible, to keep the detail separate from the tenancy agreement, putting only a clause in the tenancy requiring the tenant to comply with the estate regulations, and/or parking scheme enforce at the time.
And, importantly to have a separate parking license for each tenant, with a monthly or annual fee payable to the landlord, which can be terminated by either party with reasonable notice. That way, provided the licenses are suitably drafted, the landlord has the flexibility to vary the parking or indeed remove it, and is not then bound by a tenancy agreement which may have been drafted many years ago and is set in stone.
The landlord’s parking scheme must be clearly explained in both documents and on prominent signage around the relevant parking areas. Particularly, the enforcement procedures must be set out clearly notifying users that breaches may result in ticketing by the landlord, or removal by the local authority or police.
Clamping and towing away were outlawed in 2012 and so it is not an option unless it is carried out by the police, baliffs, local authority, or other government agency. Putting clamping and towing in the parking license and saying the tenant has consented to these means of enforcement for a breach of the scheme is not lawful or enforceable.
Abandoned vehicles are another constant complaint. Local authorities have the power to remove vehicles abandoned on private land in the ‘open air’ but our experience is that they may take some persuading to use these powers as they are under considerable restraints on spending and staffing at the moment.
Sometimes landlords have no choice therefore but to remove a vehicle as it is causing an obstruction or worse still, is a hazard to others. If time allows, and depending on the urgency, we advise checking with the DVLA first to see if the vehicle has been abandoned. In addition, ticketing the vehicle and writing to the owner notifying them that their vehicle is going to be removed and giving them a period of time to move it. This will demonstrate to a court that the landlord has acted reasonably in all the circumstances.
We strongly recommend that you always take photographs of the vehicle from all angles before and after moving the vehicle, as you are handling personal property and could face a potential claim for criminal damage. In fact, do keep notes of all efforts made to get the owner to move the vehicle, including letters sent and tickets issued, just in case the matter ends up in court.
The safest course of action when faced with a wrongly parked vehicle is to ticket it. You do not need a license to do so, provided you are the owner of the land you can issue tickets and enforce for nonpayment, through the county court.
One final point, which seems obvious but is all too often over looked, is to make sure that any rules and regulations that you draft, whether in the tenancy, license or on notices, contains clarification as to what you are allowing to be parked. You could find yourself with a Winnebago, an HGV or even, as one of my clients found in a space, a horse, albeit parked within the lines!
If you are interested in learning more about parking issues Winckworth Sherwood’s Housing management team is holding a seminar at their London Office on 25 September 2014 between 12 and 2pm. The free seminar will cover tenancy agreements, leases, licenses, how best to control parking, and the dos and don'ts of enforcement. For further details please email firstname.lastname@example.org.