The Electronic Communications Code (the “Code”) forms Schedule 1 to the Digital Economy Act 2017 which came into force on 28 December 2017.
The Code significantly changes the legal position regarding telecoms lease agreements. The pre-existing law came into force in 1984 when very few people had mobile phones and did not afford operators the ability to keep up with consumer demand for data usage and continuous network coverage. Its purpose, therefore, was to modernize an outdated system and allow telecoms operators (“Operators”) to roll out necessary infrastructure, as well as to upgrade apparatus and share sites more easily. It is therefore not surprising that the changes are almost all to the advantage of Operators rather than landowners:
- Under the Code, telecoms leases have been brought outside the scope of the Landlord and Tenant Act 1954.
- Operators now have their own statutory continuation rights under the Code.
- Rental values are likely to go down as the rent will be assessed by reference to the value in of land to the landowner rather than on the basis of value to the operator.
- Operators will have the right to share sites with other operators, upgrade their apparatus and assign agreements without the consent of the landowner.
- Agreements under the Code will continue after the end of the fixed term and a minimum of 18 months’ notice will be required to terminate the agreement. After termination, the parties will have to agree a date for the equipment to be removed. If agreement cannot be reached at either stage then the parties can apply to the court for an order.
- Any terms in the agreement that are contrary to the provision of the Code are not enforceable, nor can parties agree to contract out of it.
- Code agreements will not have to be registered at Land Registry to be binding on third parties, even where the agreement is in the form of a lease.
- Finally, the Code contains some transitional provisions and the position regarding the termination of pre-existing telecoms leases is not at all straightforward.