Property litigation weekly update – 1 July 2022
This week's bulletin reports on the Supreme Court's activity in relation to the Telecoms Code and two residential possession matters, dealt with, as you will see, in rather different ways. We then abseil from the law to a selection of good news stories.
Telecoms - Supreme Court Appeals
On 22 June 2022, the Supreme Court handed down judgments in three telecoms matters which were heard together (Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd). The key issue for decision in each was the extent to which telecoms operators who currently have kit on land (entitling them to certain Telecom Code rights) can rely upon the Code to expand or add to the rights they already enjoy.
Paragraph 9 of the Code states that "a code right in respect of land may only be conferred on an operator by an agreement between the occupier of the land and the operator". The question for the Court was whether and how an operator could be granted additional Code rights if it was already the "occupier" of the land for the purposes of paragraph 9.
Ultimately, the Court held that:
- The negotiation of voluntary agreements for Code rights is the optimal way for the regime to operate;
- The Code was devised with the knowledge that operators will need, on one hand, a long fixed term interest in the land to justify the investment in installing the equipment and on the other that this is an industry in which technology develops quickly and where new improvements to digital infrastructure should be rolled out swiftly. Parties should therefore be able to add to Code rights either by agreement or by invoking the jurisdiction of the Tribunal at a later date.
- Some operators merely fix antennae to a roof or have an access right over land so could not be said to be occupiers of those areas whereas for some sites, particularly in rural areas, they will have whole compounds. The Code should not place an arbitrary restriction on an ability to apply for additional Code rights. This is contrary to the policy of the Code which was to "deliver the coverage that is needed even in hard to reach areas".
- If operators cannot apply for additional rights during the term of an existing agreement where equipment is already in situ the Tribunal is likely to be burdened with more disputes about (i) the rights that should be granted from the outset of agreements (even if they are not currently needed), (ii) whether an application for a variation under paragraph 11 of the Code amounts to new Code rights instead, and (iii) whether the operator or the landowner is the occupier as a matter of fact.
- Operators may be encouraged to engage in the wasteful expense of temporarily re-locating to a sub-optimal site or removing their kit from existing premises, applying for new Code rights for the existing site and moving back which cannot have been the aim of the Code.
- Paragraph 20 of the Code can therefore be used to impose additional Code rights (not a modification of existing rights in respect of which the parties should generally be kept to their original bargain) and an operator is not to be regarded as an occupier of the site for the purposes of paragraph 9 merely because it already has telecoms kits installed on that site. interpretation.
This is not carte blanche for telecoms operators. Agreement should be reached by consent where possible, with operator applications to the Tribunal under paragraph 20 of the Code being made as a last resort. Applications should not be viewed by operators as enabling a "second bite of the cherry" or as a way to seek to obtain more favourable terms, with the Supreme Court noting that the Tribunal will "be able without much difficulty to determine whether the application is really for new code rights or whether it is a disguised attempt to improve on the bargain struck as to the price or duration of the existing rights".
Section 21 notices and gas safety certificates
Following the Deregulation Act 2015, landlords wishing to determine residential tenancies under section 21 of the Housing Act 1988 have had to comply with additional formalities. These include a requirement to show that prior to the tenancy, the tenant was provided with a gas safety certificate (if relevant to the premises).
In the case of Trecarrell House Limited v Patricia Rouncefield, the Court of Appeal decided that as long as the certificate was dated prior to the start of the tenancy it is not fatal to the landlord's possession action if the certificate was not provided prior to the tenancy commenced. Provided the certificate is served on the tenant before the section 21 notice, the landlord will not be barred from using the section 21 procedure.
The more recent County Court appeal case of Dean Byrne v Thomas John Harwood-Delgado has considered another situation. In this instance, rather than serving the notice late, the landlord had failed to ensure that the gas satety checks were in fact completed until six months after the tenant had stated to occupy the property. This was, however, still prior to invoking the section 21 procedure. The first instance judge, DDJ Wright, initially granted the order for possession but gave permission for appeal. HHJ Bloom held that the appeal should be allowed because the purpose of the Deregulation Act 2015 is to ensure that the property is safe for the occupants. She explained that there should be consequences to the landlord for not ensuring that was the case. In this case that meant that the landlord was barred from relying on the section 21 possession procedure. For those of you craving more detail, click here to read more.
Special forces veterans evict squatters from London property
The prospect of residing rent free in an unoccupied £50 million mansion in the heart of London appears to be enticing, judging by the increase in the number of squatters targeting high-end estate in Central London.
Just this week, former special forces veterans from the Specialist Group International (SGI) successfully executed an operation removing squatters from a property in Bloomsbury Way, Central London. SGI is a Surrey-based company comprising ex-military and emergency services experts, regularly brought in to ensure the removal of individuals and protestors in a "safe" and "caring" manner, according to Peter Faulding, the founder of the company.
The operation mimicked a 'commando style' SAS mission. The raid commenced at 4:30 am, with bailiffs storming the front door whilst abseiling special forces veterans blocked the windows. As Mr Faulding explains, though the raid probably looked a bit like a siege to on-lookers, carrying out the operation in this way was crucial to prevent the squatters getting on to the roof or balconies, which would become dangerous.
Ultimately, although SGI were successful in their removal of the squatters, the 5,521 sq ft Victorian property was left in a state of considerable disrepair. Or as Mr Faulding put it, using an expression much loved of dilapidations surveyors, the squatters had "trashed" the joint.
Insights from around the firm
- How The Chancery Lane Project drafting can bolster green leases
- Supply Chain – Managing ongoing disruption
- "A Fairer Private Rented Sector": What's in the White Paper?
- The Nurses who became firefighters: When a fire broke out at the Phillipine General Hospital in Manila, many instinctively ran for safety. Two nurses however, Kathrina Bianca Macababbad and Jomar Mallari, were aware of the 35 new-borns that were on their floor. By making multiple trips in and out of the building, the nurses one by one brought all 35 infants to safety, including premature babies who were dependent on ventilators. Here, they manually ventilated the babies whilst carrying them to safety. True superheroes!
- The cat café: The construction of a cat café has begun in Pearl City, Oahu. Not only does this café rescue and provide shelter for animals, but it also will hire young adults with developmental disabilities. The café will also have designated spaces for behavioural therapy and skills training for such individuals.
- The great-grandmother with unmatched determination: Angela Cole, a great grandmother, is set to become an internationally published author at the age of 89. This project was by no means a simple task; Angela has been working on the book for 77 years, first beginning the planning of the novel at the age of 12. The book, La Famiglia, is based upon the love story between Angela's parents (Erietta and Noti), where they met in Egypt after Noti had to fled from his hometown in Turkey due to a fire. Ultimately, when Angela's granddaughter Heidi read the novel, she was determined to making Angela's dream come true by securing her a publisher. A low value prize will be awarded to the first person to read and post a short critique of the book by way of comment on our LinkedIn post.