Question 1

Cleaning Services

Accepted Answer

Q: We have an interesting problem in need of a potentially creative solution and are hoping that the FPRA might have some ideas / experience. Our landlord is a hotel company who operates a franchise in the lower six floors our building with our residential portion occupying 64 apartments above on long leases. The leasehold portion is managed by a local company who has employed our porters since they took over approx. 10 years ago. Porters are responsible for general duties around the building including cleaning, refuse collection, reporting of incidents, manning the residents’ reception and so forth. One porter passed away a few years ago – we now have a contract cleaning company collecting the refuse as cover – and our remaining one is due to retire at the end of this year. The management company have stated that they can’t be responsible for employing new porters as they don’t come under their remit. The hotel company can’t because they wouldn’t be working for the hotel and we don’t qualify for RTM so can’t employ anyone. We’re looking to the FPRA for any advice on a solution. At the moment, the management company have said that they will contract via a service company. The issue would be that after nearly 50 years of personal service, we would lose any guarantee of regular, consistent staff. This has brought up another tangential point: it would be useful if there was a group within the FPRA for leaseholders in similar situations where they are leaseholders sharing with a business to exchange advice etc. FPRA Hon Consultant Yashmin Mistry replies: From looking at the leases we have in the office, it seems the landlord is correct in that there is no obligation under the lease for the landlord to provide a porter service. It follows therefore that there is no provision in the lease for porter’s costs to be put through the service charge either. In terms of moving forward, if 100 per cent of the residential tenants want to retain the services of a porter, you may all want to get together yourselves and draw up a formal agreement between each of the flat owners (outside the lease terms and the service charge provisions) for the porterage service and the costs of the porter are not put through the service charge account. Such a proposal will need to be considered in some detail and legal advice should almost certainly be obtained, not least because there are some serious factors that need to be thought though if this agreement were to work in practice. Leaving aside the issue of collecting funds outside the service charge lease terms, what happens if a flat refuses to pay, what about the employment right issues for the porter etc? These are all major considerations that will need to be taken into account. The alternatively is to approach the landlord to see if they would be willing to enter into a deed of variation for all the flat leases whereby the lease is amendment to oblige the landlord to provide a porterage service and the costs of such service are put through the service charge? Again, you would need all the flats on board and there would be no guarantee the landlord would agree to such amendments in the lease. Otherwise you are left with engaging a managing agents to undertake the maintenance obligations under the lease terms. [SubmittedOctober 2016]

Question 2

Cleaning Services

Accepted Answer

Q: We have an interesting problem in need of a potentially creative solution and are hoping that the FPRA might have some ideas / experience. Our landlord is a hotel company who operates a franchise in the lower six floors our building with our residential portion occupying 64 apartments above on long leases. The leasehold portion is managed by a local company who has employed our porters since they took over approx. 10 years ago. Porters are responsible for general duties around the building including cleaning, refuse collection, reporting of incidents, manning the residents’ reception and so forth. One porter passed away a few years ago – we now have a contract cleaning company collecting the refuse as cover – and our remaining one is due to retire at the end of this year. The management company have stated that they can’t be responsible for employing new porters as they don’t come under their remit. The hotel company can’t because they wouldn’t be working for the hotel and we don’t qualify for RTM so can’t employ anyone. We’re looking to the FPRA for any advice on a solution. At the moment, the management company have said that they will contract via a service company. The issue would be that after nearly 50 years of personal service, we would lose any guarantee of regular, consistent staff. This has brought up another tangential point: it would be useful if there was a group within the FPRA for leaseholders in similar situations where they are leaseholders sharing with a business to exchange advice etc. FPRA Hon Consultant Yashmin Mistry replies: From looking at the leases we have in the office, it seems the landlord is correct in that there is no obligation under the lease for the landlord to provide a porter service. It follows therefore that there is no provision in the lease for porter’s costs to be put through the service charge either. In terms of moving forward, if 100 per cent of the residential tenants want to retain the services of a porter, you may all want to get together yourselves and draw up a formal agreement between each of the flat owners (outside the lease terms and the service charge provisions) for the porterage service and the costs of the porter are not put through the service charge account. Such a proposal will need to be considered in some detail and legal advice should almost certainly be obtained, not least because there are some serious factors that need to be thought though if this agreement were to work in practice. Leaving aside the issue of collecting funds outside the service charge lease terms, what happens if a flat refuses to pay, what about the employment right issues for the porter etc? These are all major considerations that will need to be taken into account. The alternatively is to approach the landlord to see if they would be willing to enter into a deed of variation for all the flat leases whereby the lease is amendment to oblige the landlord to provide a porterage service and the costs of such service are put through the service charge? Again, you would need all the flats on board and there would be no guarantee the landlord would agree to such amendments in the lease. Otherwise you are left with engaging a managing agents to undertake the maintenance obligations under the lease terms. [SubmittedOctober 2016]

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