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Published: 16 March 2017
Area of Law: Real Estate Disputes, Telecoms

Landowners and telecoms – benefits of early agreement with Operators

Telecoms reform is on the horizon. The Digital Economy Bill which contains the new Electronic Communications Code (“new Code”) is now at Report Stage in the House of Lords and is likely to be enacted this Spring.

If you are a landowner wanting to redevelop your land/building upon which telecommunications apparatus are situated, the new Code could affect you. If you have telecoms leases due to expire, it may be better for you to take action now so you can seek to regularise the position under the existing Code, before the new Code comes into force. Acting now may be able to save you time and money!

Why you should reach agreement with Operators now

It is anticipated that the new Code will apply to new arrangements following its enactment, but there is a likelihood that the transitional provisions of the new Code will affect existing leases still running. If you are a landowner with plans to keep an Operator on your land for a while longer, you should consider your position now and attempt to retain the protection of the provisions of the current Electronic Communications Code (“current Code”). Advantages may include:

• We are familiar with the existing Code whereas the new Code will be unchartered territory. You know what you get at present and it appears that the process for recovering possession under the existing Code will be less prolonged.

• If you are able to obtain a Court Order in Court proceedings under the existing Code, then that should give you more certainty about when to expect to recover possession.

• Even if you resort to granting a new Lease to the operator, this is likely to be under the existing Code. There may be a benefit, therefore, to agreeing short-term lettings with Operators before the new Code comes into force in order to avoid the provisions under the new Code.

• Reaching agreement now may avoid the uncertainty as to the effect of the transitional arrangements of the new Code.

How to guarantee vacant possession though a Court Order

You should take into account that as a landowner, there can be a long lead in time to achieve vacant possession once the fixed term of the existing Operator’s Lease has ended, particularly if such a lease is granted after the enactment of the new Code. If your plans for redevelopment are more certain now, then you may prefer the certainty of securing a Court Order which provides for the Operator to vacate on a certain date. In these circumstances it may be better to start Court proceedings now to get possession in order to obtain such an Order.

Can the operators agree to such an Order?

• It may be possible to agree these terms with the operators ahead of any Court proceedings being started. That can speed up the process so that the Order may be filed shortly after proceedings are instigated to document the parties’ agreement.

• The benefit of having a Court Order is that you have an enforceable remedy in the event the Operator does not vacate by the date in the Order.

• A Court Order could be extended by agreement between the parties if, for example, your redevelopment plans are delayed by more than a few months. This would mean a further application to the Court to formally amend the Court Order, with the benefit that the existing Order would then remain in full force without the risk of the operator obtaining new Code rights.

As the new Code comes into force, the process to obtain possession from an Operator will be much longer and more challenging for landowners. Seeking an agreement with Operators now seems to be an opportunity that should not be missed.

"This is exactly why we like to work with people who understand the industry and can identify potential issues and create solutions."

Jon Saltinstall, Senior HealthCare Banking Consultant, Lloyds Bank