When considering installing telecommunications services at a property, tenants may well assume that the process is as simple as signing up with their chosen provider and arranging for the connection to be made. There is a generally accepted principle that no person should be unreasonably denied access to telecoms and the initial expectation may be of a smooth and uncomplicated process. However the reality is often very different as many tenants will have discovered when, for example, trying to make access arrangements with their landlord only to find themselves faced with unforeseen costs and delays.
Although a tenant may have the right under its lease to connect into the service media at a building and to run cabling up the landlord’s risers or other areas, this right may still be subject to the consent of the landlord by licence. Even if the lease does not refer to consent being required for cabling as such, a landlord may well consider that such works are deserving of a licence for alterations either concerning the works being carried out in the tenant’s demise, if any, or in the areas of the building that is not demised to the tenant (usually the basement and risers) or both. Many landlords simply want and indeed need to keep track of what has been installed at its building and where for estate management purposes. Landlords usually work on the basis that at the end of a tenant’s lease they want to get back any parts of the building that a tenant has occupied as free of equipment and cables as possible, without clutter or abandoned materials, and so clear provisions for removal and reinstatement are likely to be a key part of the grant of consent to installations.
When the consent of a landlord is required under a lease, the tenant will usually be liable for the landlord’s legal and management costs, as well as its own, and possibly also those of the telecoms provider if they are required to enter into an agreement with the landlord. Most landlords will enter into a ‘wayleave agreement’ with a telecoms provider when they make a connection into a building for the first time in order to contractually agree the basis for equipment being installed at the building as well as ongoing access rights for repair and maintenance. A satellite dish installation is almost certain to require separate licensing by the landlord who may also charge an annual licence fee for the occupation of its roof space.
Below are some hints and tips for tenants when thinking about making a new telecoms installation to their premises in order to be prepared for the likely requirements of the landlord:
- Check your lease. The rights granted to you under your lease are likely to include the ability to connect into the landlord’s service media and may also entitle you to use of the landlord’s telephone connections. Your own specific rights depend entirely on the nature of your lease own though and these should be used as a starting point.
- Approach your landlord early. Depending on how your building is managed, it can take time for applications for consent to be processed by a landlord and for them to be satisfied with the technical information you have provided in relation to the equipment to be installed. Your landlord will usually be under a duty not to unreasonably withhold or delay the provision of consent and so it is worth keeping a note of how long the process is taking. Try to be as prompt as possible in providing additional information that your landlord has requested, if any.
- Try to combine cabling works into your fit-out licence. If you are moving into a new property and doing fit-out works, a potential way to minimise the costs associated with obtaining landlord’s consent is to try to cover consent to as many of your works as possible within your fit-out licence. A fit-out licence will often be covered within the general legal costs of the letting, which are usually paid for by each party for themselves, and so you may avoid paying the landlord’s legal fee. However if a wayleave agreement with a telecoms provider is required in addition to your works, or if you require a separate satellite licence, these are unlikely to be included as part of your fit-out licence. It pays to be organised and submit your telecoms requirements to the landlord and the telecoms providers as early as possible.
- Be aware of the Electronic Communications Code. The Telecommunications Act 1984 contains the ‘Electronic Communications Code’ (“the Code”) which gives statutory protection and powers to telecoms operators which can override the proprietary rights of a property owner. If a landlord initially refuses to allow a telecoms connection to be made to your premises, the Code powers could be asserted by the relevant operator who is likely to be successful unless the landlord can show exceptional reason why the installation should be refused. However, please note that the Code is currently subject to government consultation and was recently referred to by Lord Justice Lewison as “one of the least coherent pieces of legislation on the statute book” and so changes may be introduced in the near future.
- Budget for additional fees. In light of all of the points made above, make sure you get a clear and accurate picture of all the likely costs involved as early on as possible but it is also worth allowing in your budget for any additional costs that might arise further down the line. Remember that your landlord may pass on to you the costs incurred by external consultants instructed to review your works, if they are particularly specialist, as well as their standard managing agent’s fee.
- Consult your solicitors. If you have any concerns or queries about the process of, or documents associated with, getting your telecoms installed, make sure you contact your solicitor for further advice and guidance. They can review your lease, liaise with the landlord’s solicitor and negotiate the relevant documents on your behalf. They will also ensure that you do not enter into unnecessary documents, for example if your telecoms provider already has a presence in the building and a wayleave agreement is not strictly required.
In general, a tenant is in a good position when looking to extend the telecoms services that it has connected at its premises, as the telecoms law as it currently stands is weighted largely in favour of the telecoms providers and their customers. There should not be a problem, unless a landlord has very good reason, with being allowed in principle to connect up to a chosen telecoms service. However the issues for tenants frequently stem more from the unforeseen administrative time delay and costs that can be involved with getting to the point of actually getting the telecoms up and running.