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18th November 2019

Upper Tribunal decision on interaction between Electronic Communications Code and LTA 1954

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The Upper Tribunal has handed down a decision in the first case to consider the relationship between the new Electronic Communications Code and the Landlord and Tenant Act 1954. The Tribunal were asked to consider if they had jurisdiction to impose Code rights on an operator who was already in occupation under a protected Landlord and Tenant Act 1954 tenancy.

The basic facts were that the occupier (Vodafone and later, Cornerstone Telecommunications Infrastructure Limited (CTIL)) was occupying a roof top under a tenancy protected by the Landlord and Tenant Act 1954. The contractual term of the tenancy had expired but the operator had a continuation tenancy under the 1954 Act. CTIL served notice on the freehold owner under paragraph 20 of the new Code requiring Code rights to be granted to it.

CTIL argued that it had a choice either to request a Code agreement or to seek a new tenancy under the 1954 Act. The Tribunal held it did not have such a choice. The Tribunal said that where an operator was in occupation of land under a subsisting agreement, the Tribunal has no jurisdiction to impose a Code agreement. It also confirmed that an operator in occupation may not take advantage of Part 5 of the Code to obtain a new tenancy. As such, CTIL’s options were to apply to the County Court for a new tenancy under the 1954 Act or serve notice to bring the 1954 Act lease to an end and then seek a new lease under Part 5 of the Code.

This case could be important for landowners where operators are holding over after the end of a tenancy. If the operator has or may have rights under the 1954 Act, for example under an oral tenancy created after the expiry of a fixed term, the operator cannot acquire Code rights until it brings the existing agreement to an end. For more information on telecommunications leases, please contact Stephanie Dennis on 01604 463372 or click here to email Stephanie.