Does the agreement override the lease?

Does the agreement override the lease?

11:19 AM, 18th October 2022, About A year ago 9

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We have a lease which says that there can be a porter provided to the building and historically he has lived in a flat owned by the Freeholder under license, no tenancy agreement and we have paid all his expenses and rent via the service charge including a refurb (very expensive and not very good).

We have now taken over the right to manage and finally (after 4 months) seen the agreement which says that the Freeholder is to bear the costs of council tax, electricity, gas and water.

Clearly, we will now take this up but we wanted to be on a more secure footing when we go for that discussion.

So does the Agreement override the lease, which mentions nothing just that we can have one?

Harlequin Garden

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Judith Wordsworth

10:00 AM, 19th October 2022, About A year ago

It is very likely to and forms part of his wage entitlement.


11:16 AM, 19th October 2022, About A year ago

I doubt this forum can advise on documents without seeing them and also knowing the physical size of the property etc., etc.?


17:29 PM, 19th October 2022, About A year ago

If I were you I would get a legal opinion on the licence agreement he's got as it sounds as though his portering functions, (whatever they are) might count as money's worth and potentially mean its a sham licence that a judge would over-turn, giving him an AST.


17:41 PM, 19th October 2022, About A year ago

Reply to the comment left by David at 19/10/2022 - 17:29
Thanks for this, it's been a torturous process to even see the agreement with the porter and the managing agent via their 'concierge system' as they actually denied employing him saying it was the freeholder - until they were forced to - also not seen a contract with him and had to push for the tenancy agreement which happens to be this license that after 4 months we've extracted from the managing agent - it was always very odd, he's not had a new contract that he can show us since 2012 and we have nothing with the salary that shows on the budget (the amount we pay) . The leaseholders have always paid everything to do with the porter and his accommodation it's just that this licence now says that it is the Freeholder to pay utilities.

Chris Bradley

7:28 AM, 20th October 2022, About A year ago

Surely the porter is on an official payroll of the management company where they pay the income tax , national insurance and any employers pension.
Any benefits like rent free, council tax and utilities (whoever pays them) should also be declared to HMRC by the employer as a benefit in kind increasing the income of the porter and appropriate tax should be paid on these benefits in kind.
So the management company should be able to supply you with a copy of the P60 and the P111d(for the benefits).


14:15 PM, 20th October 2022, About A year ago

Yes all of that - but the question was does the licence agreement which states that utilities are paid by the Freeholder (it does not say to be recharged to the leaseholders/service charge) over ride the lease which doesn't say that, just that we can have a live in porter - historically ALL bills relating to the porter have gone on the service charge.


15:11 PM, 20th October 2022, About A year ago

Reply to the comment left by Judith Wordsworth at 19/10/2022 - 10:00
It does, but it's a question of who pays it. it doesn't state in our leases that we pay but all upkeep of a block is down to the leaseholders, this licence states clearly that the Freeholder pays and they never have.


11:52 AM, 24th October 2022, About A year ago

As always it depends what the lease says as a legally binding contract. If the concierge or porter directly undertakes duties relating to care and maintenance of the common parts of the block then it is service charge under 85 Act. If oversight of security of common areas then rent payable by the freeholders who then obtain from leaseholders via a separate cost. What does the long residential leases say?


18:41 PM, 24th October 2022, About A year ago

Hi, speaking generally, a lease of a residential block may contain a list of 'services' that the freeholder may provide in order to comply with 'good estate management'. This may, as appears in your case, to include a porter. The obligation to provide a porter may be optional or mandatory but, depending on whether all leaseholders agree, even a mandatory obligation could be varied if you all felt there was no longer a need for a porter.

As the porter lives on site, as someone else has said, I would expect the porter's accomodation to be covered under their contract of employment (they will likely have a service occupancy which is why it is a licence).

The fact that the freeholder has to pay all costs associated with the porter's service occupancy would normally have bee taken into account when negotiating their employment contract (less pay and freeholder covers expenses) and you cannot unilaterally vary a employment contract.

I think the first question is what are you trying to achieve? I have looked at quite a few of these before so am happy to have a five minute chat if you want. If you want to speak, send me a message and your number and I will give you a call. Best, Charles

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