The installation of telecommunications equipment, such as masts, aerials and satellite dishes, on private land and rooftops is becoming more and more common given increasingly high demand for, and customer expectation of, mobile communications coverage.
At face value, this could be a beneficial arrangement for both the property owner and the telecommunications provider if, as is usually the case, a rent payment subject to periodic review is agreed between the parties. However, before signing up to anything legally binding, property owners should bear in mind the two following key areas of legislation which provide protection to telecommunications providers and could make it hard to get the equipment removed if need be.
1. Landlord and Tenant Act 1954 (“the 1954 Act”)
Depending on the nature of the document entered into, there is a possibility of a telecommunications provider obtaining rights of ‘security of tenure’ under the provisions of the Landlord and Tenant Act 1954. These rights apply to commercial leases, but care should be taken as even if a document is labelled as, for example, a licence as it may in reality meet statutory criteria that mean it is in fact deemed to be a lease. A key aspect of the agreement between the parties which may lead to a lease being inadvertently granted is a telecommunications provider having exclusive possession of the area that it is in occupation of. This could be avoided by the use of wording in the definition of the area to indicate that the property owner may move the location or reallocate the area that the equipment is based on as reasonably required.
The result of grant of security of tenure to a communications provider under the 1954 Act is that they will have a statutory right to remain at the property, with the property owner only having certain limited grounds on which it could terminate the arrangements. For example, if the property owner can demonstrate that it has a genuine intention to redevelop the site then it may be in a position to rely on ‘Ground F’ (as defined in the 1954 Act). In reality, the bar is set very high for property owners to prove a definite intention to redevelop, with evidence such as the grant of planning permission and instruction of builders potentially being required before a claim may succeed.
It is of course common and advisable to formally exclude the security of tenure provisions of the 1954 Act before the documentation is entered into and specialist legal advice should always be taken in order to correctly effect the exclusion process.
2. The Electronic Communications Code (contained in Schedule 2 of the Telecommunications Act 1984, as amended by the Communications Act 2003) (“the Code”)
If the telecommunications provider is registered with OfCom as a licensed operator, then regardless of the provisions of any documentation entered into in relation to rights to terminate (or an exclusion under the 1954 Act as discussed above), the telecommunications provider will still have certain protection under the Code.
Click here for an up to date list of communications providers with the protection of the Code.
Similar to the 1954 Act rights, the protection is a form of security of tenure meaning that a property owner may find itself unable to remove or relocate equipment without an order from the County Court. It is then the Court’s decision as to whether the equipment should be removed and this can be a costly and time consuming process and particularly unhelpful if the property owner is intending to redevelop the site. The Code sets out the notice procedure which must be followed in order to terminate any legal relationship with a protected telecommunications provider and stringent timescales must be followed. As with the 1954 Act issues, specialist legal advice should be sought when attempting to navigate the notice procedure in accordance with the Code to avoid a rejection of the claim due to a failure to correctly follow the prescribed process.