Did telecom operators occupy as a tenant at will or periodic tenant following expiry of their lease?

Summary

In the latest judgment concerning the Electronic Communications Code (“Code”), AP Wireless II (UK) Ltd v EE Ltd & another [9 February 2026], the Upper Tribunal has decided that where operator tenants remained in occupation following the expiry of a contracted-out lease without formalising their relationship, the resulting arrangement was a tenancy at will rather than a Landlord and Tenant Act 1954-protected implied periodic tenancy.

The Upper Tribunal also held that a notice served under paragraph 20 of the Code was valid even though it did not contain certain alternative dispute resolution information. This information was required by statutory amendments that took effect on 7 November 2023, but the notice was served before the amendments took effect. Statutory amendments do not operate retrospectively unless there is clear language providing for this, which was not the case here. 

The Upper Tribunal dismissed the site provider’s appeal against the First-tier Tribunal (“FTT”) decision and held that the operator tenants had been entitled to seek the imposition of a new Code agreement pursuant to the provisions of Part 4 of the Code and that the FTT had jurisdiction to impose an agreement conferring Code rights. 

Background

This appeal arose from a dispute between AP Wireless II (UK) Limited (“APW”) (the site provider) and the mobile network operators EE Limited and Hutchison 3G UK Limited concerning telecommunications equipment installed on a rooftop site at the Equipoint building in Birmingham. The operators had occupied the site under a contracted-out lease which expired on 28 February 2015. Despite the expiry, the parties never formalised a new agreement and the operators continued in occupation paying rent.

In March 2023 the operators served a notice pursuant to paragraph 20(2) and paragraph 27(1) of Part 4 of the Code on the then owner of the freehold interest in the site, seeking rights to install electronic communications apparatus. In August 2024 the operators commenced proceedings pursuant to paragraph 20(3) of the Code against APW (which had in the meantime been granted a reversionary lease by the freeholder above the operators’ lease). The operators sought an order to confer Code rights on the operators in respect of the site.

APW challenged the jurisdiction of the Tribunal on the basis, first, that the operators had, since lease expiry, occupied the site pursuant to an implied periodic tenancy which was protected by the Landlord and Tenant Act 1954 (“1954 Act”); and, second, that the March 2023 notice was invalid for omitting alternative dispute resolution information required by statute from 7 November 2023.

If the operators were tenants at will, they would be entitled to seek the imposition of a new Code agreement pursuant to the provisions of Part 4 of the Code, which would potentially entitle the operators to more favourable terms especially on rent, than they would obtain if it was a 1954 Act renewal. (NB see Harmonising Rent for Electronic Communications Tenancy Renewals for the statutory changes from 7 April 2026 (subject to saving and transitional provisions) to close the current loophole of 1954 Act renewals of electronic communications tenancies having a more flexible (and generous for landlords) valuation regime and to bring them strictly in line with renewals under the Code.)

Tenancy at Will or Periodic Tenancy?

The central question for the Upper Tribunal was whether the parties' post-lease arrangement gave rise to a tenancy at will (terminable at any time and outside the 1954 Act) or a periodic tenancy (which would attract 1954 Act protection).

The well-known case of Barclays Wealth Trustees v Erimus Housing confirmed that, where parties are negotiating for a new formal lease, the almost overwhelming inference is that they do not intend to enter into any intermediate contractual arrangement inconsistent with ongoing negotiations. In most cases, that will lead to the conclusion that the occupier remains a tenant at will pending the execution of the new lease. The inference is likely to be even stronger when any periodic tenancy would carry with it statutory protection under the 1954 Act.

The payment and acceptance of rent do not give rise to a presumption of a periodic tenancy. Instead, the parties' contractual intentions fall to be determined objectively by looking at all the relevant circumstances.

The FTT had conducted an objective assessment as to the circumstances, which negated an inference of a periodic tenancy, examples including reliance on Code protections and a previous agreement between the freeholder and the operators which showed that the parties intended occupation to be governed by the Code rather than a periodic tenancy (and 1954 Act). The FTT found that there was a tenancy at will.

The Upper Tribunal held that the FTT had directed itself correctly as a matter of law and APW’s challenge on the FTT’s finding of a tenancy at will was a challenge on the FTT’s factual evaluation. The Upper Tribunal set out the principles for dealing with such a challenge and decided that it was not allowed to revisit the evaluation. 

The Upper Tribunal upheld the FTT's determination that a tenancy at will had arisen.

Did the notice require the ADR Warning?

The Upper Tribunal held that the March 2023 notice from the operators was not invalid for omitting alternative dispute resolution (“ADR”) information required by statute from 7 November 2023. Since the notice was served before the new requirement took effect, it was unaffected by the later requirement which did not have retrospective effect (and so the notice was not required to include the ADR information). The Upper Tribunal also rejected the argument that the validity of the notice fell to be considered as at the date of the Reference to the tribunal in August 2024, by reference to the requirements in paragraph 20 as they existed at the date of the Reference. To do so would be giving the legislation retrospective effect and there was no clear indication in the legislation that it should be given such effect.

As an obiter point, the Upper Tribunal stated that if the notice had been required to contain the ADR information, the omission of that information would have invalidated the notice. Applying the mandatory language of the legislation, a notice served from 7 November 2023 which omits the required ADR wording will be invalid. Paragraph 88(2) of the Code requires a notice prescribed by Ofcom to be in the prescribed form. To be in that prescribed form, a paragraph 20 (and paragraph 27) notice must contain the relevant ADR information. Otherwise, the notice will be invalid.

Decision

The Upper Tribunal therefore rejected APW’s appeal and held that the FTT had jurisdiction to entertain the Reference and impose a Code agreement pursuant to paragraph 20 of the Code. 

Other Upper Tribunal comments on Periodic Tenancies and Code Rights

Although not determinative of the appeal, the Upper Tribunal made several observations of broader relevance.

A tenant occupying a site pursuant to an implied periodic tenancy protected by the 1954 Act is unable to access Part 4 of the Code for the purposes of renewing its existing rights; otherwise, this would be inconsistent with the Supreme Court decision in Compton Beauchamp. The tenant has the protection provided by Part 6 of the Code for its electronic communications equipment. The tenant also has the protection of the 1954 Act (albeit dependent on the landlord serving a section 25 notice). What the tenant does not have, in that situation, is the benefit on renewal of paying a rent determined pursuant to the valuation provisions in paragraph 24 of the Code. In particular, the tenant thereby misses out on the benefit of the rent being assessed at a lower level on the assumption that the right that the transaction relates to does not relate to the provision or use of an electronic communications network. Instead, on a renewal of the tenancy under the 1954 Act, the tenant will suffer what is likely to be the financial disadvantage of having the rent on renewal determined pursuant to the valuation provisions in Section 34 of the 1954 Act. (NB see Harmonising Rent for Electronic Communications Tenancy Renewals for the statutory changes from 7 April 2026 (subject to saving and transitional provisions).)

It is not open to an operator to seek the renewal of rights pursuant to Part 4 of the Code, while their existing agreement (hypothesised for the purposes of the judge’s analysis to be an implied periodic tenancy protected by the 1954 Act) is continuing. The operator would have first to terminate its existing agreement.  If this was not the position, there would be nothing to stop an operator, during the contractual life of the existing agreement, simply disregarding its existing contractual agreement and seeking a new agreement pursuant to Part 4 of the Code.  The Upper Tribunal considered that Part 4 of the Code could not have been intended to operate in that fashion and that the doctrine of surrender by operation of law did not avoid the problem of imposing new Code agreements on parties to a continuing tenancy.

To access the Judgment, please see AP Wireless II (UK) Ltd v EE Ltd & Anor (Electronic Communications Code - Respondents in occupation of telecommunications site) [2026] UKUT 45 (LC) (09 February 2026).

Many thanks to Ben Beresford who assisted with the preparation of this Law-Now.