On 28 December 2017, a new Electronic Communications Code (the "Code") came into force which can be found at Schedule 1 to the Digital Economy Act 2017. The Code sets out rules governing the installation and operation of telecommunications equipment and replaces the Electronic Communications Code in Schedule 2 to the Telecommunications Act 1984 (the "Old Code").
Rights under the Code or under the 1954 Act?
Under the new Code, telecommunications leases can no longer enjoy protection under the under both the Landlord and Tenant Act 1954 (the "1954 Act") and the new Code. This addresses an issue that could arise under the Old Code and makes the position clearer for all concerned. Instead, telecommunications providers will enjoy security of tenure under the New Code only, unless:
The Code will therefore apply to telecommunications leases of which the primary purpose is to grant Code rights (as set out in Part 1 of the Code) and the 1954 Act will continue to apply to other leases where the primary purpose is not to grant Code rights. This means that telecommunications providers will no longer enjoy dual layers of security of tenure.
Part 5: Termination
Part 5 of the Code sets out the procedure by which a landlord must follow in order to terminate a telecommunications lease granted after 28 December 2017.
These grounds are more limited in comparison to the grounds available to a landlord when opposing lease renewals under the 1954 Act. Despite the removal of the dual protection, the Code still gives considerable protection to telecommunications providers.
A telecommunications lease will be terminated on the date specified in the landlord's notice unless the telecoms provider:
A telecommunications provider can oppose the termination of its lease merely on the basis that it does not want it to come to an end and can also request new terms or new Code rights (as set out in Part 1 of the Code). The court has the power to either order that a lease comes to an end, continues in its existing form or continues on modified terms.
Part 6: Removal of apparatus
Part 6 of the Code sets out the additional procedure by which a landlord must follow in order to enforce the removal of apparatus once a telecommunications lease has been terminated.
A telecommunications provider must respond to the notice within 28 days from the date of service of the notice to confirm that it will comply or request an alternative date by which to remove and restore. If no agreement is reached within 28 days, a landlord can make an application to court ordering removal or sale of the apparatus.
The Code is intended to improve on the Old Code in light of technological developments and the increased demand for electronic services. However, it is anticipated that the new Code will continue to create difficulties for landlords. Although there is no longer any dual protection provided by the Old Code and the 1954 Act, telecommunications providers still enjoy considerable protection afforded to them by the limited grounds for termination and protracted termination process set out in the Code.
Top tips for landlords
What can a landlord do to ensure that it complies with the Code when terminating a telecommunications lease?