The Practical Lawyer

Under the old Code, landowners had to give operators just 28 days’ notice if they wanted to terminate a Code agreement. The new Code requires much longer notice – operators must be given 18 months’ notice just to terminate the Code agreement. But, it is important to note that termination is not the same as removal, and landowners must serve a separate notice specifying a ‘reasonable’ period for removal of the apparatus.

One welcome change in the new Code is that it addresses the uncertainty about whether or not LTA 1954 applies to Code agreements. Now, it is made clear that LTA 1954 rights do not apply to Code agreements (ie an agreement which has as its ‘primary purpose’ the grant of rights under the Code). This will mean that landowners will no longer have to run two sets of proceedings in parallel (ie under LTA 1954 and under the old Code). Instead, only one statutory regime will apply.

As noted above, there will be no financial benefit for a landowner if a telecoms operator is exercising its new right to share the site with another telecoms operator. But, this is merely part of the overall approach of the Code, which seems anxious to minimise the financial benefits to landowners of providing sites to telecoms operators. Note, in particular, that compensation and consideration payable by telecoms operators to landowners will now be calculated by reference (merely) to the open market value of the land – from the perspective of the landowner only. The value of the site to the operator, which could be quite substantial if it is a strategically important site, is wholly disregarded!

The new Electronic Communications Code was introduced (surprisingly) on 28 December 2017. One of the important changes is to increase the ability for operators to upgrade and share telecoms kit. Note that this is an automatic right granted to operators – it does not need to be included in the relevant agreement, or conferred by the court.

A traditional, institutional, full repairing and insuring lease (FRI) is in relatively standard terms. The whole idea is that if the terms are relatively standardised then L’s reversion is an investment asset that can be bought and sold straightforwardly. Accordingly, deviations from those standard terms are frowned upon.

The Law Society has published two short-form model office leases (one for the whole of a building, and the other for part). The leases are intended to be suitable for lettings of up to ten years, and include one rent review.

Suppose T serves a break notice on L, but subsequently changes their mind, and wants to stay in the property. What should you do?

Traditionally, it has been assumed that T wants a longer lease than L wants to grant. The courts then seek a fair and reasonable solution between L and T by balancing two rival considerations: firstly, giving security of tenure to Ts, and secondly, the security of tenure should not stifle redevelopment by property owners.