The Telecommunications Infrastructure (Leasehold Property) Act 2021 was given Royal Assent on 15 March 2021. It will come into force at a date to be announced by the Secretary of State and will apply to England, Wales, Scotland, and Northern Ireland. It is part of the Government target to deliver fast gigabit-capable broadband across the nation by 2025. The telecommunications industry has highlighted the fact that in tenanted buildings, leaseholders can face significant delays in the installation of broadband infrastructure if the landlord is unresponsive to granting access to buildings. The purpose of the Act is to speed up the process of dealing with this barrier.
The new rules apply only to leasehold premises which contain at least two residential dwellings. The Act can only be used where a tenant has made a request to the telecommunications operator to provide an electronic communications service and the landlord or person with an interest in the land has not responded to multiple notices by the telecommunications operator.
The telecommunications operator must have served a total of four notices on the landlord before they can apply to the court; a request notice, two warning notices and a final notice. These notices must contain certain information and each notice must give a minimum notice period. The combined minimum notice period for all four notices is six weeks. The request notice must set out the code right (or an access right) that the operator seeks and also that the operator seeks the landlord’s agreement. The landlord must have failed to respond to all four notices for this new procedure to apply. A landlord need only respond to one of the notices to end the process. A simple acknowledgement will do. In which case, the normal procedure under the communications code would then be followed.
Once all four notices have expired, the operator can apply to the tribunal asking it to impose an agreement between the telecommunications operator and the landlord regarding the time, the manner, and restrictions of the works to be carried out. The specific terms of this agreement will be given in a statutory instrument before the Act comes into force. It seems that the tribunal will have no discretion about the terms of this agreement.
The agreement imposed on the landlord will last for up to eighteen months. The parties are also encouraged to come up with their own replacement agreement within this period of time. The court may also order the telecommunications operator to pay compensation to the landlord for any loss or damage. The landlord can also apply for this compensation during or after the eighteen month period.
It is unclear if this new procedure will be successful in speeding up the installation of faster broadband to leasehold properties or indeed if operators will use it at all. The requirement to serve four notices over at least a six week period is certainly longer and more complicated than the normal process of giving one 28-day notice. The advantage to the operator is the simplicity of the standard agreement it will secure. Once the tribunal claim is issued, the landlord, it seems, loses the power to negotiate its own terms for the agreement and the operator does not have to justify any particular terms – they will be largely pre-determined. It is not clear whether the tribunal can or will make an order for costs against the unresponsive landlord.
Russell-Cooke advises landlords on various aspects of managing leasehold premises. If you require assistance with coming to an agreement with a telecommunications operator, you object to works being carried out, you need to apply for compensation, or any other concern, please contact us.