Q&As

Where a property is subject to a (BT) wayleave agreement, should the transfer expressly state that the property is being sold subject to that agreement? Should the transfer contain any additional clauses to protect the seller in relation to post-sale non-compliance with the obligations on the part of the landowner in the agreement?

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Published on LexisPSL on 30/07/2020

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Where a property is subject to a (BT) wayleave agreement, should the transfer expressly state that the property is being sold subject to that agreement? Should the transfer contain any additional clauses to protect the seller in relation to post-sale non-compliance with the obligations on the part of the landowner in the agreement?

It is not clear how the wayleave has arisen. One often sees agreements entered into with the providers of electronic communications under the Electronic Communications Code, the Code( see further Practice Note: New Electronic Communications Code—Code rights) and it is assumed therefore that this is the case here.

The Code is to be found in Part 1 of Schedule 3A to the Communications Act 2003 (CA 2003) (inserted by the Digital Economy Act 2017 (DEA 2017)). The Code gives operators (as defined in CA 2003, Sch 3A, Pt 1, para 2) the right to exercise code rights. They in turn are defined and include, in particular, the right to install electronic communications apparatus on, under or over the land; to inspect, maintain, adjust, alter, repair, upgrade or operate it and to enter land for those purposes (CA 2003, Sch 3A, Pt 1, para 3).

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 (CA 2003, Sch 3A, Pt 1, para 9). This will amount to a contract between those parties, with rights and ob

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