If you are a commercial or residential property owner in the UK, you are likely to be approached by a telecoms operator seeking permission to erect equipment on your land at some stage. This could range from installing a length of cable under the ground to having a telegraph pole, street cabinet or mobile mast installed on your premises. The regulation governing this type of agreement is known as a wayleave agreement.
It details what the operator has permission to do, over what period of time and under what conditions.
It is therefore important for property owners to understand the crucial aspects of a wayleave prior to entering into an agreement, as the legal and financial aspects can impact a property owner many years in the future.
What Is a Telecom Wayleave Agreement?
A telecoms wayleave is a legal contract between a landlord (landowner) and a telecommunications operator that gives the latter consent to deploy and operate telecoms apparatus on, over or under the land or property. Such equipment can be a fibre optic cable, telegraph pole, street cabinet, antenna, or mast installation.
It is important to remember that, unlike a lease, a wayleave does not give the operator exclusive possession of the land, and it simply gives the operator the right of access and the right to retain the equipment on or under the land for a specified purpose.
Wayleaves are widespread in the UK telecoms sector as operators are faced with the requirement to develop networks over a vast range of individually owned sites. Instead of acquiring land, they enter into wayleave agreements with landowners which are flexible and provide for mutual benefits.
The Electronic Communications Code and Why It Matters
It is important to note that most telecoms wayleaves in England and Wales are governed by the Electronic Communications Code (“the Code”). This was introduced by the Communications Act 2003 and revised substantially in 2017. The Code provides telecoms operators with sui generis statutory rights in addition to those available in general contract law. These include rights in relation to upgrades and sharing apparatus as well as succession rights in some circumstances when a wayleave has terminated.
This is one of the single biggest things all property owners need to understand: If you pass on Code rights to an operator, taking the equipment away or renegotiating the terms could be much more complicated than a commercial licence. Always ask what you are signing up to, and know what the consequences will be in the future.
Key Terms Property Owners Should Understand
Wayleave Payment (Rent)
This is the lump sum paid by the operator to the landowner for the right to put and maintain apparatus on the land. While a few old agreements will still be based on the ‘scheme’ value, after the 2017 Code changes, most payments are on a “no scheme” basis, valuing the land as though the telecoms use had never happened. This has brought down the level of all payments from the old scheme-based level, so it is wise to get a guide to the current prices before agreeing a figure.
Term and Termination
The term is how long the agreement lasts – often an initial fixed term plus a rolling extension. Termination clauses specify in what circumstances and when either party can terminate the agreement – but the Code assumes a means of leaving a wayleave that does not require removal of the equipment. A separate statutory procedure for the removal is open to the operator and could take some time, with additional notice periods of many months.
Access Rights
It is usual for wayleaves to specify that access to the site shall be given to the operator’s staff and contractors for installation, inspection, maintenance and repair purposes. Owners should be aware of the period of notice required before access is given, whether access may be given at short notice or in an emergency and the reinstatement obligations of the operator.
Upgrading and Sharing Rights
As defined by the Code, operators normally have the right to upgrade their apparatus and co-locate this with other operators, subject to the visual impact being minimal and the impact on land being minimal. It is perhaps surprising for some property owners, to discover that the equipment we install now may not be the same equipment that remains in five or ten years’ time.
Liability and Indemnity
These define liability for damage or injury or loss resulting from the installation, existence and operation of the apparatus. A good wayleave should make the Operator keep the apparatus insured to cover a reasonable sum and hold harmless the landowner for any claims connected with their equipment.
Assignment and Rights to Third Parties
Quite a few wayleaves permit the operator to transfer the agreement to someone else, or to give rights to a third-party, without the property owner having to approve. It is useful to see precisely what is and isn’t allowed, as this might influence who you will deal with in the future.
Wayleave vs Easement: What’s the Difference?
What is the difference between a wayleave and an easement?
A wayleave is a personal right granted by contract (similarly, licenses are personal rights). Right of wayleaves between the parties create a contractual obligation but do not have a proprietary effect and so bind owners of the land not party to the agreement.
An easement is a proprietary right capable of registration against the land and so creating the strongest form of these rights; easements are more difficult to extinguish and more easily covenanted and can generally be seen by examining the title to the land.
Easements may appear over a network of land rather than for a specific land owner and so may be preferred by operators in certain situations.
Why Professional Advice Matters?
Telecoms wayleave agreements may appear straightforward but, due to the interaction with the Electronic Communications Code, they can have practical and legal implications which are not obvious. An agreement which provides for the correct payment terms, access rights and removal provisions from the outset can help avoid a lengthy, costly and disruptive project.
Arc Partners – we deal with property owners/landlords and investors throughout the UK, negotiating wayleave and easement agreements with telecoms operators to the benefit of all parties and with proper regard to market value and long-term risk management.
Key Takeaways
- A wayleave gives a telecoms operator permission to put equipment on your land, and to keep it there, although they would not have exclusive possession of the land.
- According to the Electronic Communications Code, most wayleaves they will have obtained will give statutory rights which, in many cases, will last after the end of the agreement.
- We must understand payment, term, access, upgrading right and liability clauses.
- Removal of telecoms equipment, once installed, is a lengthy statutory procedure rather than a mere contractual matter.
- A professional opinion before execution, avoiding one-sided transactions.
Frequently Asked Questions
Do I have to allow a telecom operator onto my land?
Not automatically. Operators are required to negotiate access with you initially. But under the Electronic Communications Code they can go to a tribunal for rights if you can’t agree voluntarily.
How much should I be paid for a wayleave?
The valuation basis in accordance with the Code is now “no scheme” and value,which should lead to a lower rent than before 2017. A surveyor can therefore be able to provide a fair market figure for your site.
Can I remove equipment once installed?
The removal is not as easy as that. Operators have statutory rights to keep the apparatus mounted even after the termination of the lease for a period of time. The removal could only take place after giving formal notice and may take months before the actual removal takes place.
What’s the difference between a wayleave and an easement?
A wayleave is a personal, contractual agreement and is not a burden on succeeding owners An easement is registered against the title and is therefore attached to the property; meaning it’s the most permanent agreement for the operator.
Can an operator upgrade equipment without asking me?
In general, yes. The Code allows you to upgrade and share apts without new consents as long as this does not have an ‘unreasonable visual effect on the amenities of the area’ and does not ‘impose an additional load on your land’.
Should I get legal advice before signing?
Yes. Composed of legally binding contracts with far-reaching financial implications. Expert guidance is advisable to establish a sound agreement and safeguard your situation.