Although you don’t come across this all of the time, when you do it can catch you out when managing properties. And with its usage now increasing, it’s certainly worth understanding the basics of quickly.
It’s all about installing ‘telecoms’ equipment at a property to help our modern age of mobile phones and internet connections. Years ago, it was more large antennas erected on the roof of tall buildings, to help external providers like your phone company to have connection across an area.
So, 1982 saw the introduction of 1G technology, 1992 for 2G, 2001 for 3G, and 2012 for 4G, and 5G is planned for the early 2020s, and when we look back to, say, 2003 under the Universal Service Obligation and minimum dial-up speed for consumers of 0.028 MBPS and compare to 2020’s target of 10mBPS download-speed then we can see the reality of how things have progressed.
And with faster broadband and technology developments like driverless vehicles and Internet of Things, then this is bound to increase.
Nowadays it can be more discreet boxes and kit within as well as outside a building, and with the internet ruling our lives more and more at home and work, then providers like BT and others will now be involved in arranging for cables and kit to be installed at a property.
However, this principle of ‘telecoms’ is more for the actual equipment on site rather than your usual simple internet connections.
The Legal Basics
The early legislation of the Telecommunications Act 1984 introduced special rights for such providers at properties, with the Telecommunications Code later amended by the Communications Act 2003.
We now have a newer Electronics Communication Code from the Digital Economy Act 2017 which although has a few differences, more or less keeps the basics from the previous ones with effect from 28 December 2017 (subsisting agreements for ones entered into before then).
In short, these are legal rights for such providers to not only get on a site, but then continue onwards with all necessary access-rights and ability to change things along the way.
This new 2017 power now allows automatic rights for operators to assign their code agreements to others and upgrade and share equipment, in particular to help with the new 5G technology.
Any property owner or interest missing this might suddenly find that they can’t simply evict or change these provisions for better arrangements or even re-development, and they’re left to pick up the cost, hassle and long-drawn-out procedures of dealing with them through legislation.
The Basic Points to be Aware of
So in terms of what all this means, here are the main aspects to be aware of when managing properties.
1. The Full Range of Rights
The core right is actually such kit being allowed to stay on at the property’ the idea being that if they are covering a valid region of mobile or internet coverage then a property shouldn’t be able to just throw them out willy-nilly.
This is something that will automatically happen for the right telecoms equipment and circumstances, irrespective of whether the owner or supplier wants it; no get-out or exclusion options.
And don’t forget the range of equipment this can cover; a good example being with modern ways to receive fast broadband to a property through radio-devices on the roof rather than bog-standard cables into the building from outside.
But others include equipment on site, so maybe to change or upgrade them without a whole new agreement, being able to share space and equipment with other providers, and even being able to gain access to inspect and repair them.
In actual fact, in day-to-day property management just simple access rights and arrangements for a provider can be cumbersome, but something that they’re insisting more upon because of these rights in legislation.
2. This is Separate to Business-Lease Protection
If the kit is being documented through a business lease, which will probably be the case in lot of situations with permanent equipment rather than, say, wayleave agreements direct with a utility provider, then you’ll have usual lease-occupation rights to be aware of.
So, under The Landlord & Tenant Act 1954 the tenant has a right to continue on after the lease ends without a landlord being able to kick them out.
Traditionally people focus on one of these rights but forget the other; the rights under the Telecoms act, or the general tenancy rights under the 1954 Act.
The good news here is that under the new code there are no duplicate rights to consider. So if code ones exist, none will also exist under normal 1954 Act procedures.
3. Getting the Procedures Right
Once you have established what rights you’re dealing with, then carefully refer to the legislation to see exactly what you need to do, and when and in what fashion.
So, with recent changes, one potential issue is with these rights for telecoms operators referring to ‘land’, therefore if another supplier doubles-up and adds equipment on the other.
Technically, this second may only get direct rights themselves with cabinets and cables directly in contact with the ‘land’ and not the parts piggy-backing on the other supplier’s kit.
And when it comes to the termination of these rights, probably the main issue in question, then a property owner will need to serve a Paragraph 3 notice with at least eighteen months notice before the end of the agreement.
This code notice is in addition to any other contractual ones you may have to naturally bring it to an end with the section 31 notice date being a date beyond this contractual end date.
This does however change for pre-2017 subsisting agreements, with potential shorter notice periods and 54-Act considerations.
One of four statutory grounds must be stated to refuse a renewal, and the supplier can serve a counter notice within 3 months refusing and applying to the First Tier Tribunal; now it gets timely and expensive.
Then when a property interest does come to an end, you’ll have, say, a Paragraph 40 notice stating that in twenty eight days the kit must actually leave site, with rights of eventual re-entry and ability to remove, re-sell, and re-charge removal costs afterwards.
4. The Property Practicalities of Having Them
It may sound all okay on paper to have such facilities at a property with good returns, tightly-drawn paperwork, and happy occupiers with coverage; but don’t forget the basic effect on the property fabric itself.
So right from when it’s installed, and whether cables need to trail through other areas and riser cupboards not only needing separate agreement with other property interests, but then the actual damage to property and clean-up or re-decoration after.
Access will also need to be arranged and agreed, both during the works but then afterwards and particularly in any emergency.
5. The Paperwork & Costs
The trick is to get all this correctly documented, not only right at the end as you’re resolving issues, but way back at the beginning with any initial installation and heads of terms with tenants.
You can then agree, for example, the right licence of alterations for tenanted areas, or wayleaves for communal areas. And ideally back-up with any further details, specifications, and photos as possible to save any queries afterwards.
However, watch that this firstly doesn’t complicate things and slow the whole thing down. Even agreeing a standard form of agreement that everyone trusts can save hours of negotiating changes between parties.
And secondly, watch out for escalating costs, as everyone’s time does cost. So whether this is resolving issues afterwards, or managing agents’ and solicitors’ time first drawing up the agreement; not only get these quantified as far as possible, but understood as to who actually pays them.
6. The Simple Negotiation
All this information on these telecoms rights can leave you very confused, and soon spending lots of time and money on professional advise.
However, in reality you can often agree a deal and move on. With providers and property interests taking a commercial reality check, then often a sensible deal and timing can be agreed. If rents have to be agreed under the new Code at ‘market level’ then it’s worth remembering that these are tending to dampen rental levels.
A great example being: a landlord is re-developing a property and needs to make sure these loose ends don’t delay having full control of the property at the end.
In these cases, there are other ways to accommodate things, maybe a temporary tower location for a mast during redevelopment, or to transfer to another site and provider, or even surrender just the telecoms-demise out of any superior lease back to the ultimate developer interest to deal with.
Just don’t forget to get briefed-up beforehand so you negotiate from being in the know, and then get everything correctly documented afterwards.
The Basics Will Save the Day
Dealing with ‘telecoms’ in whatever capacity is certainly coming back on the radar – whether that’s full-on antennas or radio-devices on a roof for mobile phone coverage, or serious equipment within a property for better internet provision.
Therefore, don’t get stung by these rights that the providers have. Whether you’re a landlord-owner, tenant-occupier, or managing-agent advisor, it’s the sort of detail that can get missed to everyone’s peril.
So, have a good audit of what you have at a property now, and be ready to deal with any future requests correctly.
In the end it may just boil down to common-sense and discussions with everyone to come to an amicable solution, however you may then need to bring in the specialists to deal with it correctly.
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