Telecoms Code – can Code rights be defeated where a land owner intends to redevelop?
Chris Marsden | 25.07.2019
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Need to know points
Since the new Electronic Communications Code was introduced, some 18 months ago, the rules of the game for telecoms operators and land owners have seen real change.
In essence, the code is about enabling infrastructure so that the public has access to a choice of high quality telecoms networks.
Land owners might explore ways to defeat Code rights being claim on the basis that it would interfere with redevelopment plans.
Tribunal Decision – EE Limited and Hutchison 3G UK v Meyrick 1968 Combined Trust Of Meyrick Estate Management 
The operators, EE and Hutchinson 3G, had masts on an Estate in Hampshire owned by The Meyrick Trust. They sought to renew their rights under the old Code but negotiations had stalled, so the operators applied to the Tribunal to impose fresh rights under the new Code.
The Trust opposed the application on the basis that it intended to erect their own masts in place of the operator’s existing ones. This was because Code rights cannot be claimed over electronic communications apparatus (including masts). The intended consequence of this would be that after the redevelopment, the Code wouldn’t apply – and the land owner would then be able to freely negotiate new terms outside the constraints of the Code.
The Upper Tribunal adopted the same approach taken by the Supreme Court in the key decision is Franses v Cavendish  relating to an opposed lease renewal based upon redevelopment grounds under the Landlord and Tenant Act 1954. In that case, a new test was established – whether or not the landlord still do the works if the tenant left voluntarily, regardless of having the financial means available to implement planning permission.
Franses was not binding on the Tribunal, but it was held to be relevant to the Code. Accordingly, where a landowner relies on its proposed redevelopment to resist Code rights, the landowner must intend to do the same works if the Code rights were not being claimed.
Landlords should be cautious seeking to implement schemes that seek to ‘get around’ the Code legislation.
There are circumstances when Code rights can be defeated, but be prepared for the proposals and motives to be heavily scrutinised.
Only schemes that are genuinely intended, regardless of any telecoms apparatus, are likely to succeed.
Chris Marsden has experience acting for national telecoms operators as well as private land owners. Please get in touch to discuss any concerns you might have about the impact of Code rights on your land or development scheme.
The Tenant Fees Act 2019 (“the Act”) came into force on 1 June 2019.
It applies immediately to tenancies created on or after 1 June 2019 and to all tenancies, whenever granted, from 1 June 2020. For tenancies granted prior to 1 June 2019, a landlord/agent can still charge fees up until 31 May 2020, but only where permitted under an existing tenancy agreement.
A “tenancy” includes an assured shorthold tenancy (AST), tenancies of student accommodation and licences to occupy housing in the private rental sector in England.
Landlords can only require payment if is it on the list of “permitted payments” in the Act. This includes:
The “Homes (Fitness for Human Habitation) Act 2018” came into force on 20 March 2019.
If you are a landlord, the thought of an extension to your repairing obligations may fill you with horror. However, there are no new obligations; rather, you are required to make sure you are complying with your existing statutory responsibilities. If this is done, then you will be ensuring that your properties are fit for human habitation.
The Act supports a landlord’s repairing obligations under s. 11 of the Landlord & Tenant Act 1985, implying a term into tenancy agreements that a property will be “fit for human habitation” for the duration of a tenancy.
How does the new Act apply?
The new law will apply if you are a tenant subject to, or a landlord letting properties on the following tenancies:-
Escalate, the ground-breaking dispute resolution process for SMEs, was awarded the hotly contested ‘Legal Services Innovation Award’ at the prestigious British Legal Awards last night – completing an unprecedented clean sweep of the major national legal awards during 2018.
Hosted by Legal Week, the glittering awards ceremony was attended by over 1,000 lawyers and serves as a showcase for the achievements of the legal sector.
This latest recognition means that Escalate has now won three major national legal awards this year. In addition to last night’s honour, Escalate has been recognised as ‘Best Collaboration Initiative’ at the Lawyer Awards and for ‘Excellence in Business Development’ at the Law Society Excellence Awards. Escalate was also named ‘Innovation of the Year’ at the British Accountancy Awards.
Escalate helps SMEs to achieve a prompt settlement to a wide range of commercial disputes, with fixed fees payable only on a successful outcome and no upfront costs.
Mark Osgood, Partner and Head of Asset Recovery, Moore Blatch said: “We were driven by a desire to create a service that would tackle the issues that SMEs encounter when they try to get access to justice – long lead times, high upfront costs, considerable uncertainty. We knew that the solution would need to be innovative and rely on collaboration between a number of professional services firms. The result was Escalate.
“We’re incredibly proud that our peers in the legal sector have recognised this once again, with Escalate being cited for innovation, collaboration and business development at the legal industry’s most prestigious award ceremonies this year. That’s a unique achievement, reflecting Escalate’s genuinely ground-breaking approach.
“This is reinforced by the demand that we’re seeing from clients for the Escalate process – we’re already helping businesses to recover more than £40 million that’s locked up in commercial disputes.
“Given the interest in Escalate, we’re looking to expand our network of partner firms and increase access to justice for more SMEs. If you’re interested in finding out how you and your clients could benefit from using Escalate, please get in touch.”
Moore Blatch has won a Law Society Excellence Award for Excellence in Business Development. The firm won the award along with law firm Bermans, for a ground-breaking commercial resolution process for SMEs, Escalate.
Firstly, it is important that the circumstances surrounding your tenancy agreement and potential claim for possession are reviewed so any potential issues can be identified, mitigated or rectified.
As the law surrounding possession procedure can be treacherous, this review is important ensuring that you can begin your claim for possession with the confidence that you are likely to be successful.
Before court proceedings can be issued, a notice seeking possession must be served to comply with the requirements of the Housing Act 1988. There are two types of notice seeking possession:
Section 8: This notice is used in circumstances where the tenant has breached a term of the agreement, for example if they have failed to pay rent.
Section 21: This notice is used when the fixed term has come to an end and you want possession of your property, or to exercise a break clause. This notice is served on a without fault basis, therefore the court must make an order for possession – unless there is a technical issue or credible defence to the possession claim.
If, after the formal notice seeking possession has expired, the tenant fails to vacate the property or make good their breach, court proceedings must be issued in order to gain possession of the property.
There are two types of procedure: the Accelerated procedure; and the Standard procedure.
This route can only be used if you are seeking possession only and a section 21 notice seeking possession has been served and expired. Provided the section 21 notice is valid, and the deposit requirements have been met, the court must make an order for possession and has no discretion to order otherwise. This route is intended to be a paper-based exercise and is usually dealt with without the need for a hearing. However, should a tenant file a defence to the possession claim, the matter may be listed for a hearing.
This route is used where the landlord wants possession of the property and there has been a breach by the tenant of the terms of the tenancy agreement. Issuing using the standard procedures allows you to include a money claim (e.g. for outstanding arrears) alongside your claim for possession.
If the tenant refuses or fails to vacate the property once a court order for possession has expired, a bailiff will need to be instructed to remove the tenant and gain possession of the property. Even with a court order for possession, it is a criminal offence for a landlord or their managing agent to evict a tenant themselves.
Chris Marsden | 25.07.2019
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