A problem landlords sometimes face is cars unlawfully parking on private land.
In particular for example, many of our properties are in a town centre location so it can become troublesome. We have found the most effective way to deal with the problem is where possible to rent out the land for use as car parking and let the tenants police it. However, we have a couple that we keep for ourselves mainly so that all our vans and maintenance people are within close proximity of a number of properties so it’s a good place to leave vehicles when working. This particular spot is often filled with cars from shoppers or residents of the flats who have been told not to park.
We have tried putting up chains and such but that makes it difficult when wishing to park and leaving the site. Although we have never clamped vehicles, we have in the past had signposts suggesting we would do.
It is interesting therefore to see that the Protection of Freedoms Act 2012 introduces measures in relation to car parking on private land generally. The Act received Royal assent on 1 May 2012 and is commencing gradually.
A person commits an offence who, without lawful authority—
(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or
(b) moves, or restricts the movement of, such a vehicle by any means,
intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.
However, there is a specific exclusion if the restriction of movement of a vehicle is by way of a fixed barrier as long as it was present before the car was parked.
But, where the restriction of the movement of the vehicle is by means of a fixed barrier and the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked, any express or implied consent (whether or not legally binding) of the driver of the vehicle to the restriction is, for the purposes of subsection (1), lawful authority for the restriction.
It is unclear at this stage whether a “fixed barrier” will include a chain across a drive for example.
It will not be possible for a person to consent (expressly or implied) to having their motor vehicles movement restricted, so a sign stating cars will be clamped if they park on the land will be of no effect for example.
There is no reason currently that a charge cannot be made for parking on land or as a penalty as long as consent (whether express or implied) can be shown perhaps by suitably clear signage etc. (and subject to planning permissions etc.) After all, private car parks such as NCP rely on this principle of contract to make a charge for parking in their car parks. It is no different if a landlord wanted to make similar charges for using the space or as a penalty. The important factor is ensuring there is no question that the person parking the car was in no doubt as to the terms of the contract and importantly the price they would have to pay. Currently though, the charge could only be made against the driver of the vehicle because they were the one accepting the contract. There is no way of enforcing the contract upon the keeper of the vehicle unless you could prove the keeper was driving at the time of parking. This would usually require CCTV footage or similar.
Schedule 4 of the Protection of Freedoms Act 2012 contains a very detailed procedure for making a charge for car parking on land. Crucially, schedule 4 allows the land owner / occupier to charge the keeper of the vehicle if the whereabouts of the driver is unknown.
A “parking charge” is defined in Schedule 4 as:
(a) in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and(b) in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,
however the sum in question is described;
Since the schedule commenced on 1 October 2012, a creditor has the right to recover any unpaid parking charges from the keeper of the vehicle [para 4(1)] but only if certain procedures are followed (see below) and the car was not stolen when it was parked [para 4(2)]. The right may only be exercised after the end of the period of 28 days from when notice to the keeper was given [para 4(4)].
The certain procedures (known as conditions) mentioned above are:
- The creditor (landlord for example) must be unable to enforce the charge against the driver because the creditor does not know both the name and a current address for service for the driver [para 5]. (Therefore, if the driver is known, the creditor must pursue the driver and not the keeper for the unpaid charge.)
2A. A notice must have been given to the driver specifying certain prescribed information (very much like a local authority PCN). The notice must have been given before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and while the vehicle is stationary, by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle [para 7]. In addition, a notice to the keeper must also have been sent within 28 days which like the notice affixed to the vehicle must contain certain prescribed information. The notice must be given by handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period [para 8]
2B. In the alternative, a notice to keeper, basically the same as that described above must have been served within 14 days (compared to 28 days if a notice has been affixed to the stationery vehicle) [para 9].
Note: The notices to driver and keeper described above may also be required to contain evidence of the parking. Such evidence may be prescribed in secondary regulations but at the time of this article, no secondary regulations are proposed.
- The creditor must have made an application for the name and address of the registered keeper of the vehicle during the period of parking under section 22(1)(c) of the Vehicle Excise and Registration Act 1994 within 14 / 28 days and have received back the requested information [para 11]
Any prescribed requirements must have been met at the beginning of the period of parking to which the unpaid parking charges relate. These requirements may be made by secondary legislation and could include:
- Requiring signs to be displayed on any relevant land;
- Those signs to contain prescribed content; and
- They will need to be located on the land as may be prescribed.
However, there are no plans to introduce secondary regulations so any signs may be produced as long as they are clearly visible (sufficiently for the purpose of creating a contract).
There are slightly different procedures in relation to hire vehicles contained within the schedule.
All in all, on it’s face, I think this is a potentially useful piece of legislation for landlords wishing to protect their land from cars being unlawfully parked whilst the driver nips to the shop as is invariably the excuse. “I will only be a minute” is a common phrase I hear but I’m quite sure they wouldn’t be happy if I parked on their front garden for 10 minutes!