Time for a mediator at Upton Dene?

Posted to the blog on the  15/10/2013

The letter below was posted to the board of directors of Upton Dene Residents Ltd five days ago. Unfortunately no reply or communication of any kind was posted in response. Perhaps the lack of engagement by Upton Dene Residents Ltd is a true indication of the failure of company law when it comes to directors responsibilities to account for their decisions. It is up to shareholders and readers in general to form their own opinions on these matters. But I ask you, if you meet one of these directors during your day, to present to them the following questions that have, as yet, gone unanswered. 

1. Upton Dene Residents Ltd claimed to have taken "Legal Advice" prior to implementing the changes to parking regulations at Upton Dene. If this is truly the case why haven't the board presented to shareholders, upon request, a copy of that advice.  Is it the case such Legal Advice doesn't exist?

2. The new parking regulations have been challenged with a justifiable argument. Why haven't the board engaged in that discussion. If you are confident that Upton Dene Residents Ltd had the rights to make these changes to parking  at Upton Dene then surely you have the confidence to present your case when challenged.

3. If issues like these cannot be solved between shareholders and directors on a one to one basis then a mediator can be used to help work toward a resolution. Are the board in favour of a mediator? If not why? 

The blog can be contacted via 4shareholderview@gmail.com. Shareholders comments are welcome and will be treated in confidence if requested.

A letter to the board of directors requesting dialogue in search of a solution to the present situation regarding “No Rights to Parking” at Upton Dene 

To;                                                                                                                                                                      10/10/2013

Upton Dene Residents Ltd

Upton Dene

From;

David

Upton Dene

On the 24^th of June 2013 the directors of Upton Dene Residents Ltd published a rewrite of the “Company Regulations”. The new policy of no rights to parking for residents except under license from the board was introduced.

On the 26^th of June, two days later, I presented a letter to the board explaining that they could not remove shareholders rights to parking as it was a right expressed in the lease. In the same letter I asked the board to explain their position. I specifically asked them to….”clarify what legal basis they have to go against the lease”.

My case was presented to the board two days after the new company regulations were published. That was 5 weeks before Ace Security Services’ contract came into force. There was no delay on my part to communicate my concerns to the board.

On more than one occasion the board have stated in writing that they had taken “legal advice” regarding changes to parking rules. I requested to see that “Legal Advice” from their legal adviser multiple times over the last three and a half months and have received no response todate. 

The seriousness of the matter at Upton Dene requires dialogue. I have received 5 tickets todate from “Ace Security Services” for being a shareholder, for parking on the square within the bays and in a safe manner. The board contracted “Ace Security Services” to police the common areas and issue parking penalties without first, or at any time since, engaging in dialogue with me on the points I raised.

It seems the board of directors have chosen the method of force to establish these new “No Rights to Parking” policies. Todate I have received zero explanations from the board of directors regarding my concerns of lease changes. Attempting to force through changes that have been challenged by a shareholder is not the best approach to the problem we face.

I ask the board a simple, direct question.

Is your strategy ,into the future, to continue to ignore my requests for explanations and a dialogue and for “Ace Security services” to continue issuing parking fines regardless of my rights to be heard?

Freehold Management Companies and a section of Parking Enforcement Companies seem outside of a stringent regulatory framework when it comes to day to day management issues.  A weak regulatory framework plus the two types of companies above make for a bad marriage were shareholder’s rights are concerned.

I do not believe the presence of Ace Security Services is helping us resolve matters. Directors have to manage the issues. Contracting “Ace Security Services to “manage the issues” on their behalf, through force of a penalty notice, is not right in any sense.

It seems the presence of the parking enforcement company has allowed the board of directors to believe they can “step back”, abdicating responsibility, for their policies in the hope that the parking enforcement company “Ace Security Services” can get all “sorted and settled” through parking penalties. This won’t work on any level and I hope the courts will understand shareholders predicament and make any fines unenforceable.

To alleviate further escalation and reputation damage to our estate we should talk. I am comfortable talking directly with the board or a board representative. If the board on the other hand would be more comfortable using a mediator we can find an appropriate person through such websites as “The Leasehold Advisory Service”. Issues like ours fall under the specific category of “Alternative Dispute Resolution”, abbreviated to “ADR”. 

•         We should start with common areas of agreement and work toward details of agreement.

• ·       The lease is the subject and we can establish written milestones along the way

• ·       The meetings would be between myself and a board member or members. A mediator can be present if requested.

• ·       Common ground of agreement will be in writing and signed and would be binding.

• ·       The discussions and debates beforehand will be exploratory and discursive and non-binding.

I believe this is the best way to understand the rights and responsibilities of shareholders and directors alike and overcome the impasse we have at present.

I believe, for this situation to have a chance of resolving itself, parking enforcement by Ace Security Services of shareholders not displaying a permit should be suspended for the period of discussion and agreement. (Shareholders and their vehicles are known by the board and Ace security Services. It is a simple matter to make sure all enforcement officers are aware of those vehicles and are instructed not to ticket). I would also suspend my charges to the board and Ace Security Services for the same period for as long as agreements are adhered to.

Calling a halt to further escalation and searching for common ground, around the lease, is the only way this matter can be resolved. I and other shareholders are in favour of this approach.

A copy of this letter will be posted to “shareholderviews.blogspot.com” on the 15^th  October 2013. I would be happy to post your reply at the same time. If you need more time to draft a reply let me know before the 15^th and I can adjust the publication date within reason.

I look forward to working toward a resolution with you

Regards

David

4shareholderview@gmail.com

Frustration with Upton Dene Residents Ltd; a new charging plan regarding tickets on my car

Posted to directors of Upton Dene residents Ltd

From

David

Upton Dene

Grange Rd

SM2 6TA

19/09/2013

To

The 7 directors of;

Upton Dene Residents Ltd

Amended charge list for Upton Dene Residents Ltd, starting from 23/09/2013.

Good morning.

As you are aware from past letters to you, I believe the board of directors, “No rights to parking” policy to be a violation of my lease. I have a right to park on my freehold without director’s permission because my lease gives me those rights and privileges.

I have made every effort to explain my rights to parking at Upton Dene but despite my efforts I have received 3 penalty notices todate and no legally documented explanations for the “no rights to parking”.

I do not feel the board of directors have taken seriously my points regarding this matter. Neither have they made any significant effort to reply to my questions. In fact, in a letter from the board, dated 25^th of August 2013, the board stated that they, “…. deam this matter closed.”

The board’s decision to, “close this matter” 25 days into this new “no rights to parking” policy, with no explanation of the legal basis of this policy, amid my concerns that my rights and privileges have been violated, is irresponsible.

Your attempts to enforce a violation to my lease, is presenting a distorted picture of me to the Upton Dene community and to others who see my car ticketed. I am not in the wrong here, you are. I am defending my rights and privileges that my lease gives me. Upton Dene Residents Ltd, on the other hand is attempting to enforce a removal of those rights and privileges.

On June 27^th,  2013, more than a month before you implemented your “no right to parking” at Upton Dene, I asked you to, “……clarify what legal basis they have (the directors) to go against the lease….”

I received no reply to this question.

The board of directors have mentioned in letters to shareholders, more than once, that they had taken “legal advice” on this matter. But despite these statements no legally documented position has been made available to shareholders.

In a letter to the board, dated September 9^th 2013, I asked for a second time to see this “legal advice”, but the board of directors have ignored my request, again.

If the board of directors were so confident in the legal advice they received, then they should be confident enough to present that documentation to a shareholder on request.

In the boards 25^th August letter to me you stated…."we will not be paying the charges you have detailed”.

My invoices are made up of charges for the use of my vehicle and the £10.00 a day charge is for the denial of my rights and privileges. Your contracted agent, Ace Security Services, enforces your decisions. They are authorised, wrongly, by you.

I am free to offer my services, in your case my vehicle. You want somewhere to display your agents’ documentation; my car is available at a price.

Clearly you have no grounds to enforce “No rights to parking” because my lease has already given me those “rights and privileges” for 950yrs.

I have stated my charges. You have used my services. It is your choice if you use those services or not. Invoice number 001, and future invoices, are payable.

I feel little effort is being made by the board to answer my questions. On the contrary, I feel they are ignoring them completely. I have made every effort to detail my rights to parking on Upton Dene in a clear manner and received almost no input from the board. It seems the board is distancing itself still further from my concerns.

In a letter dated 3^rd September, a director wrote to me that she would be, “…..grateful that in future if you (david) have any correspondence for me or the board of directors that you post it through my letterbox and not knock on my door.”

I am beginning to think that no legal adviser was hired and no legal position was documented prior to the August 1^st 2013 implementation of the “no rights to parking” policy. The board can easily, ease me from my doubts by giving me copies of the legal documentation they claim to have.

A resolution to this matter is not near. With this in mind, I am amending my charges for the use of my vehicle by “Upton Dene Residents Ltd” and its contracted agent “Ace security services”.

The charges are divided equally between “Upton Dene Residents Ltd” and “Ace Security Services”. Each of the two parties receives invoices accordingly.

On the 23^rd  of September 2013 the new charges below come into effect

Amended charge list to Upton Dene Residents Ltd.

*Daily charge for parking rights removal	£10.00 per day.
Penalty notice (and others) Attachment charge to/on vehicle (per item)	£500.00
Daily charge per attachment	£250.00 per day
Attachment removal charge (per item)	£500.00
Moving of my vehicle without my written permission	£1000.00

*The daily charge will not be made on you when ALL signage is removed from Upton Dene. When the signage is removed it will be clear that the rights in the lease have been re-established and your role in the enforcement of “no rights to parking” ended.

These changes will be reflected in future invoices from the date stated above.

I also request, FOR THE THIRD TIME, information from the board of directors regarding the “legal advice” you received regarding the changes to our parking rights. I would like to see a copy of that legal advice from your legal advisor. I understand that you don’t believe that a change in the lease took place on 1st August 2013 because, from your position, shareholders never had a right to parking 32 years ago when the lease was written. Nonetheless I would like to see a copy of the drafted legal argument, not an explanation by directors, but the actual legal document in full that is used to enforce a “No rights to parking” at Upton Dene.

And for the second time I request to have the general breakdown of the types of vehicles you will permit (in both senses of the word) to park on Upton Dene property. For example I don’t believe you will give a permit to a householder who owns a commercial van of any type, even if it is the sole vehicle of a household. The types of vehicles in question are; small commercial van, larger transit type van, four wheel drive, SUV type, large estate cars etc. 

Regards

David

Letter from Ace security Services (Trading name of Pace Recovery and Storage Ltd) in response to my charging them for attachment of tickets to my car.

On August the 6th 2013 I issued a set of charges to Ace Security Services Ltd

My charges to you, "Ace Security Services" are as follows

• When a charge notice is attached to my vehicle a charge of £50.00 will be made to your company.
• For each day it stays on my vehicle a charge of £25.00 a day will be made to your company
• For the removal of the charge from my vehicle a charge of £35.00 will be made to your company.

Other admin, legal etc charges for the penalty notices will be made accordingly, as well as interest if payment is not received by the date stated on the invoice.

I have issued the same set of charges to "Upton Dene Residents Ltd" so you are both paying half the overall costs.


..............................................................................................................................................................................................................................

Below are the two reply letters, followed by the contract Upton Dene Residents agreed to

Ace Security Services  Trading name of Pace Recovery and Storage Ltd

Ace Security Services Trading name of Pace Recovery and Storage Ltd

Ace Security Services  Trading name of Pace Recovery and Storage Ltd

My reply to these letters was....

19/09/2013

To

Ace Security Services

Trading name of Pace recovery and storage Ltd

Regarding New charges to Ace security services starting from 23/09/2013.

Good morning.

As you are aware from past emails I believe you are placing “charge notices” and other stickers on my car without grounds. I have a right to park on my freehold without permission and, therefore your company has no right to enforce penalties or otherwise.

I informed you in a detailed email of your errors over a month ago (Aug 6^th 2013). In your reply you stated….

“As you are contesting the legality of our clients to instruct us to control the parking at Upton Dene, we will be referring it to them for verification. We will be in contact once the matter is resolved” August 6^th email to me

1. A promised reply from you is still outstanding on this matter of “legality” and “verification”.

2. I also went through your appeals process (email dated 30^th August 2013) regarding the “rights to parking at Upton Dene”. You have not replied to that appeal either.

In ALL my emails I have made every effort to explain my rights to parking at Upton Dene, (the email dated 30^th August 2013 even has my lease attached in full for you to study for yourselves). Despite those efforts I have received 3 penalty notices todate and no replies to points 1 and 2 above?

Your attempts to enforce a violation to my lease, is presenting a distorted picture of me to the Upton Dene community and to others who see my car ticketed. I am not in the wrong here, you are. I am defending my rights and privileges that my lease gives me. Your company, on the other hand is attempting to enforce a removal of those rights and privileges.

Last week, on the 13^th of September 2013, I increased the daily charge to you for denying access to my rights to parking.  The charge was increased from £2.00 a day to £10.00 a day. This increase stands

In your letter dated 11th September 2013 you stated you will not be paying the “invoice” “charge notice” number 001a because it was invalid.

My invoices are made up of charges for the use of my vehicle. Your contract with Upton Dene Residents Ltd is between you and them, not me. Your actions, in relation to my vehicle, on the other hand, is a matter for me.

I am free to offer my services, in your case my vehicle. You want somewhere to display your documentation; my car is available at a price.

Clearly you have no grounds to enforce “No rights to parking” because my lease has already given me those “rights and privileges” for 950yrs.

I have stated my charges. You have used my services. It is your choice if you use those services or not. Invoice number 001a, and future invoices, are valid.

On the 23^rd of September 2013 the new charges below come into effect

Amended charge list to the contractor “Ace security services”, and those contracted to act on their behalf.

*Daily charge for parking rights removal	£10.00 per day.
Penalty notice (and others) Attachment charge to/on vehicle (per item)	£500.00
Daily charge per attachment	£250.00 per day
Attachment removal charge (per item)	£500.00
Moving of my vehicle without my written permission	£1000.00

*The daily charge will not be made on you when ALL signage is removed from Upton Dene. When the signage is removed it will be clear that the rights in the lease have been re-established and your role in the enforcement of “no rights to parking” ended.

These changes will be reflected in future invoices from the date stated.

This letter will be emailed to you and posted to your accounts department.

Regards

David

A letter to the appeals department of Ace Security services (Trading name of Pace Recovery and Storage Ltd)

 The company that is contracted to enforce a "no rights to parking" at Upton Dene is Ace Security Services (Trading name of Pace Recovery and Storage Ltd).
My car was ticketed for parking in a parking bay, which for the first 32yrs of the lease all shareholders and visitors did without having to have permission to do so from the board of directors. Ace Security services claim to have a  "28 days to appeal" a ticket process. We are now into the 25th day since the appeal was lodged and no reply from their appeals process has been received. But I have received further parking charge tickets on my car. Here is the email to Ace Security Services In full dated 30th August 2013.

An appeal notice regarding a “Charge Notice” being attached to my vehicle XXX XXX on the 3^rd of August 2013.

DavidXXXX

Vehicle RegXXXXX

Upton Dene

Grange Rd

SM2 6TA

4XXXXXXXXXXX

The reason for the charge was “not displaying a valid permit”.

Ref No 0000905307

Reason why the notice should be dismissed.

I am a shareholder of the freehold that is Upton Dene. I possess a share of 1/45 of the freehold.

The freehold was established in 1981 and for the past 32 years (of our 999 lease) vehicles have had the freedom to park in the “parking areas” of our common areas.

In August 2013 the board of directors made the decision to change that fact and remove rights to parking on the common areas of Upton dene, this included the clearly marked parking bays that my car was parked in when you ticketed my vehicle.

The board of directors have removed 100% the rights of shareholders to park on their freehold.

That right is now returned to us by the board of directors at their digression and under license, hence your charge stating “Not Displaying A valid Permit”.

I dispute this change of our lease by the board of directors and believe it to be a challenge to my rights as written down in my lease.

My lease overrides any modifications that are attempted by the board of directors and any rights You “Ace Security services” believe you have to enforce these changes.

I do not require a permit to park in the bay areas of my freehold. My lease gives me that right. There are no restrictions or licenses required to park on my freehold.

Below is the document, in part, given to the board of directors on the 26^th of July 2013 outlining my rights in the lease.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 

The section of the lease director’s claim gives them rights to create a “No parking zone”, at Upton dene is;

 “The right for the lessee and all persons authorised by the lessee(in common with all other persons entitled to the like right) at all times to use go pass and repass through along and over the common parts for all the purposes incidental to the occupation and enjoyment of the premises (but not further or other)”.

Our Lease; (THE SECOND SCHEDULE above referred to EASEMENTS RIGHTS AND PRIVILEGES INCLUDED IN THE LEASE Page 19 paragraph 1.)

Director’s interpretation of this section is skewed and wrong. The lease statement above does not, in any way whatsoever, support the board of director’s claims……”you can drive in and out of the garage driveway but not permitted to park”. Extract from a Letter posted to all shareholders from Upton Dene Residents Ltd   24 June 2013

A truer statement of 19.1. is;

“The right for the lessee and all persons authorised by the lessee…at all times………”

a.           “to use”

b.           “to go pass”

c.           “ to repass”

      “…..for all the purposes incidental to the occupation and enjoyment of the premises”……….

There are three verbs, clearly stated, in this legal speak above (a,b,c) (page 19.1.).

1st “to use”, 2nd “to go pass”, 3rd “to repass”. The board of director’s whole argument is skewed and focuses only upon “to go pass” and “to repass”. Our leases also give us the right “to use” the common areas. A fact the board of directors ignore.  Leaseholders have the right “to use” the common areas, for “all purposes”.

Unless the board of directors have found a definitive clause within the “THE SECOND SCHEDULE” (or in the lease as a whole) that restricts vehicles specifically “to use”, common areas, then I believe, their whole case rests on sand and runs contrary to the lease.

I believe the “use” of common areas by vehicles is not a violation of the lease and directors cannot make it so.

I don’t believe it can be more clearly stated than it is in the lease;

“…….to use…..for all the purposes incidental to the occupation and enjoyment of the premises……”

The board of directors, by attempting to remove the right to park on Upton dene property, will be in violation of the lease and may be subject to claims and appropriate legal action.

The board of directors are threatening to remove “to use” rights from the lease (on page 19.1.) by imposing restrictive parking via a change in “Company Regulations”.

If the board wishes to change the lease it cannot be done through “Company regulation” changes.  The board of directors are contravening our leases by denying lessees’  “to use” rights as stated in 19.1.

I believe that the board of directors, by denying “to use” rights of our common areas for parking, are, for the first time since the formation of our freehold company, breaking the terms of our 999yr leases. They are undermining our 999yr leases and that will affect the saleable values of our properties.

“To use” in the lease is not restricted, it is clearly stated. The board of directors of “Upton Dene Residents Ltd” are however attempting to define “to use” and restrict it, via rewrites of “Company Regulations”, that are contrary to our lease.

I understand the irritations that come with being a director and not being in a position to impose laws as you see them, but leases exist to protect against infringements of shareholders rights. The law is the law, our lease is our lease. 

I believe, if these infringements of the lease are imposed by the board of directors, as outlined in the “Company Regulations”, future buyer’s solicitor’s will inform their clients to the facts and this will turn buyers away from Upton Dene and we will be stained with “legal gossip” for years to come.

The seven members of the board of directors for “Upton Dene Residents Ltd” are about to contravene the lease and impose changes to our rights of “to use” on which they have no legal standing.

This letter is being posted at first to each individual on the board and ALL of them should consider the points carefully.