The Telecommunications Infrastructure (Leasehold Property) Act 2021 completed its passage through Parliament on 15 March 2021.The government has said that it expects an additional 3,000 residential buildings a year to be connected to better broadband as a result and that the new law will ensure that the nine million people living in blocks of flats “aren’t left behind”.
In the post-pandemic world, working from home for at least part of the week may well become the new normal. The delivery of fast, reliable and secure broadband networks and even better mobile reception is a key driver to any such (permanent) shift in working patterns.
What does the Act do?
In amending the Electronic Communications Code, the Act aims to solve the challenges faced by code operators when attempting to access properties on behalf of tenants wanting superfast connectivity. Seemingly, as many as 40% of landlords ignore operator requests for access.
The Act gives Ofcom registered operators a unilateral right to apply to court to impose “interim code rights”. The whole process is intended to reduce the time it takes for operators to access premises from several months to six weeks. It is also intended to be significantly cheaper than currently where costs upwards of £10,000 have been cited.
Which properties are affected?
Blocks of flats or other multi-occupied residential premises only. The Act does not apply to commercial property at present.
What are code rights?
These are rights granted to an operator to carry out various activities for the purpose of providing an operators 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.
How can interim code rights be conferred?
An operator first has to serve an initial request for code rights followed by two warning notices and a final notice in prescribed form and at specified intervals. If a landlord fails to respond to all four notices, an application can be made to court.
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 imposing an agreement on the landlord for a maximum period of 18 months. The hope is that the 18 month period will allow time for a more permanent agreement to be reached between the operator and the landlord.
The terms of the agreement will be specified in regulations yet to be published but in the list of terms which the Act states must be included in any such agreement, 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.
A landlord may, however, 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.
Can an operator be prevented from securing these rights?
An operator will not be able to apply to court and use the expedited process if a landlord agrees to grant rights or where it acknowledges the request notice in writing or otherwise refuses in writing to be bound by the interim code rights.
A landlord can therefore stop the process at any point by responding to the operator.
What next for landlords?
To avoid interim code rights being forced upon them unilaterally, landlords operating in the residential sector (and managing agents and management companies) need to
- pay close attention to any operator request for access to install infrastructure
- ensure that proper systems are in place for timely responses to be given to operator requests.
- ensure that contact addresses are available and up to date.
Landlords would also do well to consider implementing their own broadband infrastructure policies for their buildings. Not only would this allow them to control how, where and when connectivity is made, but ultimately, superfast broadband capability will also make their buildings more attractive to tenants and occupiers.
Authored by Anita Zacharias