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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9339
Experience:  I have been practising for 30 years.
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I DRIVE A BMW MINI WITH MY COMPANY'S LOGO ON IT. THE RESIDENTS

Customer Question

I DRIVE A BMW MINI WITH MY COMPANY'S LOGO ON IT. THE RESIDENTS WHERE I LIVE SAY I CANNOT PARK BECAUSE THE BY-LAWS FORBID THE PARKING OF COMMERCE VEHICLES. IS MY MIN A COMMERCIAL VEHICLE - IT HAS FOUR SEATS AND LITTLE SPACE FOR ANY GOODS IN THE BOOT.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Is this a restrictive covenant in the deeds or is it a local authority by law?What is the exact wording of the provision? How many residents are complaining about this? Just because a vehicle has signs on it or does not have signs on it does not necessarily make it a commercial vehicle. A van is obviously a commercial vehicle. A plumber may use his estate car for business but not have signs on, but it does not become a commercial vehicle even though it is used for commercial purposes.Just because a car has signs on and may be used for the purposes of business does not make it a commercial vehicle. In cases like this, the court will very often referred to the Oxford English Dictionary for a normal interpretation which is any type of motor vehicle used for transporting goods or paid passengers. Therefore, a taxi is a commercial vehicle and using that definition, so is the plumber’s estate car with no writing on. Using the same interpretation yours is not a commercial vehicle you don’t carry paid passengers goods.Fortunately, the EU has defined a commercial vehicle as any motorised road vehicle that by its type of construction and equipment is designed for and capable of transporting whether the payment or not, more than nine persons including the driver, goods and standard fuel tanks. The reference to fuel tanks is rather odd but it means the fuel tank which runs the vehicle. There is no requirement for it to be sign written. Your car would certainly not come into this category.What also help you is the fact that for taxation purposes, this is not classed as a commercial vehicle because it is not used primarily for the conveyance of goods. For taxation purposes, small vehicles are all now taxed as PLG (Private Light Goods) so that does not assist.Can I clarify anything for you?Please do not forget to rate positive. It is an important part of the process by which experts get credit.Best wishesFES
Customer: replied 1 year ago.
Hi FES,
This is a restrictive covenant of a leasehold consisting of approximately 12 apartments. The wording is "Paragraph 24 of the Fifth Schedule of the lease: ‘Not to Park or accommodate any commercial vehicle or trailer or caravan or boat or any other similar on any parking space or any other part of the reserved property".
I am actually the landlord and have replicated the above wording in the tenancy agreement. My tenant has the mini. My view is that my tenant has every right to park her mini, bur she is being harassed by the "Board of Directors" of the property. As a result she is having to park off site.
My position on the matter is as you have stated above. So thanks for providing additional clarification.
I will now raise the issue with the Board requesting that they desist from blocking a what I see as a legal right.
Have I overlooked anything?
Best regards,
Graham
I will definitely rate you highly. Thanks
Expert:  F E Smith replied 1 year ago.
Thank you. That is much better than a bylaw. Bylaws are enforceable by the police and/the local authority. A restrictive covenant is enforceable by the landlord or management company and the other leaseholders. Before the other leaseholders can enforce covenants, they must not have breached any covenants in the lease themselves. They cannot breach their own covenant and then try to enforce another covenant against you. A covenant must be no more than is reasonably required to protect adjacent properties and in this case leaseholders and the general amenity of the area. Based upon the previous information I have given you which may have crossed with your reply to me, and based upon what I have told you above, I can see no reason why the resident should not park there.There is another here and that is that the tenant is entitled to quiet enjoyment. If the Board of Directors continue to hassle her, that is a breach of covenant for quiet enjoyment apart from also being a criminal offence under the Protection from Harassment Act. The latter becomes a police matter. The Board of Directors either have to issue proceedings against her to make her comply there issue proceedings against you for allowing it to happen and this not complying. I would not give their litigation a good chance of success.Best wishes
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Customer: replied 1 year ago.
Last related question related to whether “the site regulations” issued by the "management board", that prohibit parking of branded vehicles or vehicles with advertising, be legally enforced? Other than "commercial vehicles" there is no reference to "branded or vehicles with advertising" in the lease document that I signed. I was actually unaware of any "site regulations". Thanks, Graham.
Expert:  F E Smith replied 1 year ago.
Sometimes there is a provision in the lease for the mgt co to stipulate minor rule changes from time to time “in the interest of good estate management”. However, they are not automatically legally enforcecable otherwise no one would ever be able to rely on the terms of a lease.