The Electronic Communications Code (the Code), which came into force following the Digital Economy Act 2017, has revolutionised the way the law relates to negotiations between property owners and telecommunications operators in the UK. This is because of the significant advantage the Code provides to operators and this is why, now more than ever, property owners who do not seek the right advice could be left exposed both financially and legally.
At Arc Partners, we are specialist Chartered Surveyors with vast experience in telecoms property issues. We act solely on behalf of property owners in the UK in helping them with their negotiations with mobile operators, fixed line operators and any electronic communications operators in general.
This guide sets out what is meant by a Telecom Code Specialist, why appointing one is important and when it is absolutely necessary.
What Is the Electronic Communications Code?
The Electronic Communications Code consists of statutory rights provided to licensees like BT, Vodafone, O2 and CTIL (Cornerstone), which are major mobile network operators, giving them the right to install and retain their electronic communications apparatus on privately owned land. The statutory rights are extensive and wide-ranging. The operators have the power to approach the Upper Tribunal (Lands Chamber) to make an agreement under the Code even against a landlord’s will, and the rents paid are usually greatly reduced through a no-network valuation basis, which is totally different from market value.
It is not easy for the landlord to survive in this situation if he does not have expertise or proper experience in this regard.
What Does a Telecom Code Specialist Do?
The Telecom Code Specialist is a Chartered Surveyor or consultant specialising in the Electronic Communications Code and property law related to telecommunications. The work of such an expert covers all phases of the landlord/ operator engagement, starting from the early stage of enquiries to lease renewal, dispute resolution and site removal. Main services include:
- Advice on new Code Agreements and operator’s negotiation
- Monitoring of Paragraph 20 and Paragraph 26 notice received from operators
- Site valuation according to the code
- Landlord’s representation in lease renewal and variation process including rent review
- Development rights protection and break clause provisions
- Uphold requests for upgrade and equipment change
- Site removal, relocation and interim rights dispute resolution
- Upper Tribunal landlord representation if required
While a regular solicitor or property agent does not have the same knowledge about the telecoms sector as the Telecom Code Specialist, the latter knows everything there is to know about the industry, its legal aspects, and what the operators want in order to meet market benchmarks.
When Should You Hire a Telecoms Code Specialist?
There are a number of specific points when the input of an expert in this area becomes essential. In case you miss them, your agreement may be imposed by the Tribunal, unfavourable terms will become legally binding, and certain landlord rights will be jeopardised.
At the Point When You Get a Notice About Entering Negotiations on a New Code Agreement
According to Paragraph 20 of the Code, an operator is allowed to send a formal request about entering negotiations on a new Code agreement. As it is a legal procedure with certain time limits, it means that you should react to an operator’s request within 28 days. If you do not respond appropriately, an operator can file a complaint to the Upper Tribunal in order to impose the agreement.
Where An Existing Lease Is Near Its Expiry Date Or Renewal Period
Many of the existing telecommunication leases do not fall under the purview of the Landlord and Tenant Act 1954 but rather the renewal scheme provided for by the Code itself. This makes it impossible for a landlord to simply refuse the operator an extension. The specialist would be able to help you understand which renewal scheme applies and your chances of gaining possession, as well as maximising the conditions of a renewed lease.
When An Operator Plans to Improve Its Equipment
Telecommunication code operators have legal rights to upgrade certain types of their equipment without landlord permission as long as such upgrading causes only minor damage to the premises. However, there have been many disputes where the limits of such rights have been exceeded. A Telecom Code Specialist can help you understand your rights in relation to these upgrades and ensure that the necessary arrangements have been made.
In the Case of Development or Redevelopment of Land
When you wish to redevelop or develop land where there is a telecoms installation, then you will have to take certain measures in order to have the installation removed and the code terminated. This is a complicated process and involves certain procedures. Early action, and ideally taking action prior to the acquisition of planning permission, will provide you with the best negotiating stance regarding the removal or relocation of the site and possibly at the expense of the operator.
When You Buy or Sell a Property
In the case of a property which has a telecommunications installation, there are many things to consider about this. The presence of a code agreement, the content of the agreement, the level of rent charged, and the difficulty of getting the removal of the site will all play a major part in the negotiations between the purchaser and the vendor.
Why Is It Important That Arc Partners Only Work For Landlords?
Arc Partners provides exclusive services only to landlords and property owners. There are no conflicts of interests because we do not provide consultancy to the telecom operators. The consultancy that we give will therefore be in line with your interests alone. Because we have worked for some of the most distinguished property owners in the UK, including institutional property owners in London, we have extensive experience of how telecom operators operate, the benchmark and how to negotiate with them.
Our knowledge extends across all types of electronic communications network, whether rooftop macro sites, Greenfield mast sites, urban micro cells, Wi-Fi/WiMAX, private mobile radio or TV/radio broadcast equipment.
Conclusion
Operating the Electronic Communications Code without assistance from a professional is an important danger to landlords. The legislation is very operator friendly, and the results of bad advice could mean lower rent levels, loss of development opportunities, and unfavourable arrangements in the long term. Arc Partners can provide you with all the necessary legal and technical expertise that will enable you to safeguard your interests and obtain the best possible result at each step of the telecommunication site process.
FAQs
Q1: If I already have a solicitor, do I still need the assistance of an expert Telecom Code Specialist?
Yes. While solicitors are trained to handle a wide variety of legal documentation (i.e ‘drafting documents’), they lack the commercial intelligence (valuation and negotiation strategy) that a Telecom Code Specialist would bring to the negotiation of telecoms agreements.
Q2: How long does it generally take to negotiate an agreement under the Code?
Negotiation can vary between operators and on average can take between three to twelve months. Appointing a specialist earlier in the process usually assists to expedite the process and reduce the chances of operators taking undue advantage of the process by creating procedural delays.
Q3: Can an operator install equipment on my roof without my consent?
No. An operator is required to have your agreement (or an order from the Tribunal) prior to being permitted to install equipment. If an operator installs equipment without proper authority, you should seek specialist advice immediately.
Q4: What is your right to payment based on the Code?
As there are landlords and operators (tenants) for each of the agreements that are subject to the Code, landlords can be compensated for any loss of money obtainable as a result of their contract with the operator. In addition, compensating the landlord for the total amount of compensation claim not only protects the right of the landlord, but also protects the right of the operator from having their claim denied.
Q5: Is the Electronic Communication Code the same for all parts of the UK?
Yes, the Electronic Communication Code applies to all of Great Britain (England, Wales, and Scotland) but each country has different processes. Arc Partners offers landlords throughout England, Wales, and Scotland advice on how to comply with the Electronic Communication Code.
Q6: What should I expect from a telecom operator if I don’t respond to their notice?
The telecom operator may apply for an agreement from the Upper Tribunal, which could result in you being ordered to enter into an agreement under unfavourable conditions.