For clients who have existing leases for telecoms masts on their land, a recent court ruling has big implications – especially if your tenant mast operator(s) is demanding a completely new lease, for far less rent.
The Lands Tribunal for Scotland (LTS) ruled recently on the EE Ltd/Hutchison 3G Ltd v Duncan & Others case.
The essence of the case was whether an operator (i.e. the tenant) of an existing telecoms lease, can demand a new lease under the terms of the new Communications Code, (the terms of which are likely to be much less favourable than the existing lease), or if a lease running-on from year-to-year under the Scots Law legal principle of tacit relocation is sufficient for the needs of the tenant to maintain its communication links.
The LTS ruled that the tenant must provide a justifiable need for a new lease to be agreed, otherwise, the existing lease should continue. The ‘need’ places a high burden of proof on the tenant to justify why the existing lease is unduly onerous or restrictive and why consumers of telecommunications services will be better served by the replacement of the agreement.
At the time of writing, this ruling has been challenged and an appeal is likely, but for now, the DUNCAN case has set a precedent and is case law.
So (whilst the DUNCAN case stands), for anyone with an existing lease for an existing telecoms mast who has been asked – or served Notice – by their tenant for a completely new lease… our advice is to instruct your D&R Agent to decline the ‘offer’ and make a counter-offer.
If you think you may be affected, call Derek Bathgate, Lead Director on Telecoms, on 01292 265 851 or contact your local D&R office