Bulk asset agreements – more than just a wayleave
More and more residential landlords are looking at ways to fast-track the roll-out of high-speed internet and telecoms connectivity across their housing stock.
One of the ways to do this is by entering into a "bulk asset agreement" with a telecoms provider (Provider), the role of which is to enable the owner or landlord (Owner) and the Provider to agree a framework for installation, supply of utilities, and ongoing maintenance & repair of telecoms apparatus on or within more than one property at a time.
Key considerations for entering into a bulk asset agreement
Here we set out a short summary of what these bulk asset agreements do and some key provisions to look out for.
In many ways, a bulk asset agreement can present itself in the same way as a traditional telecoms wayleave, insofar as it:
(a) grants rights to the Provider to construct repair and maintain its apparatus;
(b) contains obligations on the Provider regarding delivery of the works, obtaining statutory consents, removal and safe operation of their service media;
(c) reciprocal obligations on the Owner regarding access to the apparatus, keeping the building surrounding the apparatus in repair and non-interference obligations;
(d) Code rights and obligations, and other matters.
A bulk asset agreement, however, often comprises more than one property and/or building in a portfolio. As each building and/or development can present its own challenges and differences, the Owners should ensure that any bulk asset agreement takes into account the following key points:-
- Approvals - does the bulk asset agreement contain an approvals mechanism, prior to works commencement, so that the Provider is first required to submit to the Owner for approval its proposed works specification(s), the location and route of the apparatus across the relevant properties within the portfolio, and the risk assessment(s) and method statement(s) to be used on each property, prior to works commencement. This is particularly relevant as the works will likely be staged and not all of the information will be available on signature of the bulk asset agreement;
- Termination – does the bulk asset agreement permit termination for individual properties? This would cater for scenarios such as, for example, where events of default by the Provider occur for specific properties, meaning that the Owner has the right to determine either the whole of the bulk asset agreement, or solely in respect of the properties where the Provider is in default to preserve the existing arrangements;
- Additional properties - does the bulk asset agreement contain provisions allowing for properties acquired by the Owner in future to be brought within the scope of the agreement at a later date, rather than having to enter into new agreements?;
- Fees - does the bulk asset agreement allow for the payment of a fee, nominal or otherwise, by the Provider for the right to install equipment across the Owner's portfolio? The terms and quantum of any such fees would be by agreement between the Owner and the Provider (e.g. a fee per property in the portfolio);
- Leasehold properties - where the portfolio of properties includes any leasehold property, is it a requirement of works commencement across the portfolio that any superior landlord's consent required to the installation and/or grant of rights is first obtained? Are individual rights of occupation considered (e.g. residential tenancy agreements, shared ownership leases, etc), given the tenant mixes that are provided on residential schemes, and are appropriate protections regarding access and disturbance provided for?; and
- Lender consent - if one or more of the portfolio of properties are charged by the Owner, is a requirement of works commencement that lender consent is first required (where required)?;
The Telecoms Group at Trowers & Hamlins LLP can offer specialist advice on bulk asset agreements and wayleaves to landlords, owner-occupiers, developers and tenants.
Please contact us for further details and we would be happy to discuss them with you.