Unresponsive landlords could soon find themselves subject to a court imposed, interim code rights agreement allowing telecoms apparatus to be installed on their property.
Amendments made by the Telecommunications Infrastructure (Leasehold Property) Act 2021 to the 2017 Electronic Communications Code provide a mechanism for an Ofcom registered operator to make an application to court which will reduce to six weeks the process by which operators may get access to multi-let residential properties and blocks of flats/apartments.
The changes mean that an unwary landlord to an operator's request to install telecoms apparatus will no longer be able to turn a blind eye.
All is not lost for landlords however, as a landlord can stop the process at any point by responding to the operator. An operator will not be able to use the new expedited process to apply to court if the landlord agrees to grant the rights, or if it refuses in writing to be bound, or where it otherwise acknowledges the operator's request notice in writing.
When working from home is the current norm, and is likely to be the 'new normal' for part of the working week in a post COVID world, the delivery of fast and reliable broadband and mobile reception cover ensures that the millions of people living in multi- let residential properties are "not left behind." The Government expects an additional 3,000 residential buildings a year to be connected to better broadband as a result. The new law will support the change in working patterns for many people.
Although Royal Assent has been received, we do not yet know when the Act's main operative parts which apply throughout the UK, will actually come into force. It is clear that the Government is keen to push matters forwards as it recognises that connectivity is key in a post - pandemic world.
The Government launched a consultation on 9 June 2021 (it closes on 4 August 2021) seeking views on interim rights procedural matters, the length of time for which interim rights should remain valid and whether to extend the scope of the Act to include other property types (such as business parks and office blocks). Forewarned is forearmed.
CONNECTIVITY IS KEY: CHEAPER AND FASTER ROUTE FOR INTERIM CODE RIGHTS FOR OPERATORS
- The Act aims to solve the challenge faced by code operators when attempting to access properties following a tenant's request for better broadband connectivity. Apparently, 40% of landlords ignore these operator requests.
- The Act gives Ofcom registered operators a right to apply to court to impose "interim code rights".
- To start the process, the operator must first serve a request notice seeking code rights, and then serve two further warning notices. A final notice must then be served before issuing the application to court for a Part 4A order, (four notices in total, in prescribed form and at specified intervals).
- Where the court is satisfied that the application requirements have been met, and that no objections have been received from the landlord, it may make an order conferring the code rights identified in the request notice on the landlord for a maximum period of 18 months. The intention is that during this 18 month period, the operator would either seek to reach a more permanent consensual agreement with the landlord or apply to the court to have rights imposed through the existing code process under Part 4 of the Code (paragraph 20) for a court imposed agreement.
- The entire process is intended to reduce the time it takes for operators to access premises where there is an unresponsive landlord from several months to six weeks (42 days). It is also intended to be significantly cheaper.
- The Act applies to a 'multiple dwelling building’ (meaning a building which contains two or more sets of premises which are used as, or intended to be used a separate dwelling). This covers blocks of residential flats and apartments or other multi-occupied residential premises only. It does not apply to commercial property at present. It applies to England, Scotland and Wales.
- Code rights: These are rights granted to an operator to carry out various activities for the purpose of providing an operator network or an infrastructure system. The rights include installing electronic communications apparatus on, over or under land with associated rights of access for inspection, maintenance, repair, alteration and upgrading.
The Government intends to issue guidance to assist operators, tenants and landlords.
The terms of the court imposed agreement will be specified in regulations yet to be published (and which will require the outcome from the Government consultation before being issued). The list of terms which the Act states must be included in any such agreement include:
- details of the works to be carried out;
- the obtaining of appropriate consents for the works;
- the service of the necessary notices as evidence of operator attempts to contact the landlord (operators should ensure, wherever possible, that access requests are sent to the actual landlord at the correct address (or to an individual empowered to respond to access requests);
- restrictions on the operator's right to enter the land at specified times (except in cases of emergency), to carry out work in an appropriate manner and reinstate at the end of the work and
- the requirement for appropriate insurance cover or indemnification.
No mention is made of consideration payable to a landlord for the grant of the rights. This will presumably be covered under the wider negotiation for the permanent code rights agreement. However, a landlord can apply to the court for compensation to be paid by the operator in respect of loss or damage sustained as a result of the rights being exercised. This may only be done after the court order has been granted.
Once these provisions come into force, clearly it will be important for landlords of all multi-occupied residential leasehold buildings to respond to, and acknowledge, any operator requests for access to install telecoms apparatus promptly to avoid interim code rights being forced upon them unilaterally. Best practice for landlords (and managing agents) is to ensure that proper systems are in place for timely responses to be given to operator requests and that contact addresses are up to date.
Landlords are fully aware that in letting buildings the availability of superfast broadband connectivity is of paramount importance to tenants, particularly during a pandemic!
 Under paragraph 21, the court may impose an agreement where the prejudice caused to the relevant person by the order is capable of being adequately compensated by money and the *public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.
*Public benefit – the court must have regard to the public interest in access to a choice of high quality ECA.