The Telecoms Industry

DANGERS

Any landlord granting rights to an operator to erect an installation on his land should be aware of the following: --

Removal

The landlord may not be able to enforce removal of the installation, either at the end of the term or during it (see legal framework) except potentially at great cost. Any owner contemplating development at any point in the future should therefore think very carefully at the outset about potential future problems. If he does proceed, the lease should be drafted very carefully to cover various relevant issues and the costs of removal of the operator’s equipment.

Blight

The existence of the installation and the fact that it may be permanent may have serious effects on the value of the owners land. As a very general rule, a mast in the corner of a field could well increase its value, unless residential development is envisaged; the opposite may be true where the installation is on a rooftop, particularly of a tenanted building where both the value of the building and the level of rents achievable might be affected.

Pressure Groups

Where a landowner grants consent to an installation he may well become the target of pressure groups campaigning against such masts. People living in the area may make life unpleasant. Where the landowner is, for example, a public sector body such as the police, the public protests may be at a level which affects the police-public relationship. (As a general rule, such protests are peaceful and do not last for very long but there are several cases across the country where they have gone on for years and/or the protesters have resorted to physical action)

Health

There may be health issues. At present, research has not identified any specific threat to human or animal health from telecoms installations and their emissions, but there is no guarantee that they are completely safe. Whilst it would be difficult to prove, someone believing that their cancer/illness was caused by mast emissions could bring an action against the operator and join in the landowner.

Specialist Advice

Landlords approached by an operator who do not have specialist solicitors and surveyors will be unlikely to achieve market levels of rent or adequate levels of protection for themselves. Many surveyors claim to know the market and solicitors the law when they do not.

Security of Tenure

The occupation document may claim to be a licence. It may refer only to “rights” that the owner is to grant to the operator (and not to the land itself). It may nonetheless be a lease, governed by the Landlord and Tenant act 1954 giving the operator security of tenure AND code powers (see legal framework), and creating problems when renewal negotiations start, or when development is envisaged.

Site Sharing

Planners are keen to see operators sharing masts rather than each building their own. All the operators have national contracts between themselves which regulate such sharing arrangements, with individual site share agreements being entered into for specific sites. Under letting is virtually unknown. The problem is that the operators will not disclose the central sharing document. The landlord will receive a proportion of the fee paid by the sharer to the tenant, but the total sharing fee is based on a ‘rate card’ agreed nationally between the operators. As the rate card is confidential the landlord will not know how his percentage of the sharing fee is calculated, and will not be able to check whether his share is effectively the percentage the operator agreed to pay. There are ways to minimise this and in some cases rectify existing leases / licences to insure you receive a fair proportion of the total income generated from the sharing arrangement.

Breach

Landowners outside the industry may not realise when and if the operators install additional equipment or upgrade their installation without consent, or in the guise of “maintenance”. There may be other breaches that go unrecognised. Unless the landowner requires the tenant to rectify such breaches within a reasonable time, he will be deemed to have acquiesced to the breach and will lose the right to e.g. bring an action for damages.