It can be tempting for landowners to allow telecoms operators to erect masts on their land in return for payment, particularly in times of economic difficulty, but landowners should beware: obtaining possession of the land again can be very difficult, even if the lease has come to an end.

The Telecommunications Code

Agreements for telecommunications apparatus are governed by the Telecommunications Code within the Telecommunications Act 1984 (‘the Code’). The overarching object of the legislation is to maintain network coverage for mobile and other forms of telecommunication use.

What does the Code say?

The Code therefore restricts a landlord’s rights to remove telecoms equipment and to gain vacant possession after the end of a lease. The protection given by the Code goes beyond the protection provided to tenants under the Landlord & Tenant Act 1954 (‘the 1954 Act’).

Under the Code, if a landlord wishes to remove telecoms equipment he must serve a notice on the operator stating that he would like the equipment to be removed. The operator has 28 days to serve a counter notice. If no counter notice is served then the operator will lose his rights to keep the equipment on the land. However, an operator will in most cases serve a counter notice and, if the operator states that it is not willing to remove the equipment and proposes steps to secure its rights to have the equipment there, then the landowner can only enforce removal by an order of the court.

Telecommunication operators also have rights to apply to court to force the installation of telecoms equipment in the event that a landowner does not agree to its installation.

Significance for landowners

The important point for the landlord is that operators can remain in occupation even after the end of their lease and even if the lease is contracted out of the 1954 Act. The Code cannot be contracted out or bypassed in any way.

What can a landowner do?

A landowner must firstly make sure that the contractual tenancy has ended and take steps to terminate any statutory tenancy that might exist under the 1954 Act. After that, the landlord needs to serve notices under the Code requiring the removal of the telecoms equipment and, if a counter notice is served, apply to court. The court would look at all the circumstances of the case before reaching a decision as to whether the equipment should or should not be removed.

In most cases the landowner and operator will seek to negotiate a relocation of the equipment but this can be a very lengthy process. A landowner should therefore start the ball rolling as soon as possible if vacant possession of the land is required.

Finally, it is worth bearing in mind that the removal of equipment without a court order could bring about a prosecution for criminal damage and also for civil damages for interference with the network.

For more information please contact Ruth Leadbitter on 01865 262604.

Commercial Property Newsletter - 25 March 2011