Unintended Security of Tenure: Another AP Wireless II v On Tower

In this Newsflash episode, Lizzie Collin is joined by Richard Snape, Head of Legal Training at Davitt Jones Bould, to analyse the recent First-tier Tribunal decision in On Tower v AP Wireless II.

This important case raises significant questions for both landlords and tenants in relation to periodic tenancies and tenancies at will, as well as their interaction with the Landlord and Tenant Act 1954 and the Electronic Communications Code.

Richard and Lizzie discuss:

• How the Tribunal approached the distinction between a periodic tenancy and a tenancy at will.
• Why this distinction matters when determining security of tenure under the 1954 Act.
• The wider implications for operators and landowners in the telecoms sector, particularly where the Electronic Communications Code applies.
• Practical takeaways for landlords, tenants, and practitioners dealing with lease renewals and electronic communications agreements.

The case highlights ongoing uncertainty in this area of law and demonstrates the need for careful drafting and strategic advice when negotiating property rights. For those advising on commercial property or telecoms infrastructure, this episode provides valuable insight into how the courts are likely to treat such disputes going forward.

Other Cases Mentioned: 

AP Wireless II v On Tower [2025]

Mannai Investment Co. Ltd v. Eagle Star Assurance [1997]

Smoke Club Ltd and others v Network Rail Infrastructure Limited [2021]

Valleyview v NHS Property Services [2022]

Wheeler v Mercer [1956]

Training & Free Webinars for Property Professionals: 

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking.This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking. 

This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

Podcast 11th September - Another On Tower v AP Wireless II.mp4

Transcript

00:00:03 Lizzie
Hi, Richard.

00:00:03 Richard
Hello, Lizzie. It's been a long time.

00:00:06 Lizzie
It has. We spend most of our weeks together it seems recording.

00:00:11 Richard
Qualify it like that. Yeah. OK. And here's another one.

00:00:16 Lizzie
And here's another one. So we're here to talk about a first tier tribunal case that's just come to light from the 25th of June and it's all about periodic tenancies and tenancies at will. The case is called on tower and others and AP Wireless 2 limited and the case name sounds familiar is it? A similar case to what we've done before.

00:00:39 Richard
AP Wireless non tower called Repeal case. I'm not sure when it was not so long ago. A few weeks ago it's the same people involved but and it's all about well it's mainly about communication as much, but I'm gonna steer clear of that and make it a bit more general than what the tribunal said.

00:00:45 Lizzie
Yeah.

00:01:00 Richard
It's should I remind you of the original on Tower case. Well, that that was a a bizarre code for appeal case, which was about the fact that, well, I I better give you some of the background to the communications stuff.

00:01:04 Lizzie
Yes, please.

00:01:18 Richard
Economy Act of 2017 that came into force for our purposes on December the 28th of that year and cases subsequent there's been lots and lots of cases on it, but cases subsequently said that if you've got a lease that was in existence prior to that date.

00:01:35 Richard
It comes within the regime with the landlord and tenant at 1954. If you want to go through renewal, if you've got a lease from that date.

00:01:44 Richard
Onwards. Then you go through renewal and to whether it's it's more beneficial for the communications operators, which would be under the code. And just to recap, I suppose that that case seems to have demolished large numbers of things we thought were leases cause leases have a fixed maximum.

00:02:03 Richard
Creation they must have, and contrary to a Supreme Court case called Prudential and the London residuary body, it's said that a lease for an agreement. So I should say for 10 years.

00:02:17 Richard
Which either side could terminate on 12 months notice, terminating there within the 10 years was not a fixed maximum duration. We won't heard the last of that. It's obviously not just applicable to communications equipment. It's presumably applicable across the board. This was the same people. There's been another subsequent case involving another nine sites.

00:02:38 Richard
But this On Tower was a different argument, and it's only first tier tribunal, shall I try and give you the background argument too?

00:02:46 Lizzie
Yes, please.

00:02:50 Richard
Well, there are three agreements in place.

00:02:57 Richard
Two of them involved On Tower. We've taken with Simon to the leases a place called Dalkeith Farm, which is somewhere in Cambridgeshire, and Sandy Lane Golf Club in Middlesex. There was a third which will leave.

00:03:14 Richard
You know, for the time being, factory football club and they all had these agreements whereby they On Towers predecessors would occupy both their communications equipment.

00:03:29 Richard
Dalkeith Farm lease was entered into there was a 54 Act excluded lease. It was entered into the Sandy Lane Golf Club with 15 years from the 3rd of January 2002, so they both came to an end with the fixed terms and was also excluded and came to an end in 2017.

00:04:01 Richard
It started on the 3rd of January, came to an end on the 2nd of January 2017 and the April the 1st lease came to an end on March the 31st. That's not actually true. Fixed term tenancy terminates on the actual anniversary date House of Lords case Manaan Eagle Star in 1997. Following on from Side Bottom and Holland in 1895.

00:04:26 Richard
Anyway, what had then happened is after 2017.

00:04:30 Richard
You know, before the legislation came into force, they continued paying their rent, for instance, the Dalkeith farm I think had paid its rent, you know, yearly until January 2026, they'd already paid a year in advance.

00:04:46 Richard
And Ontario would take the assignments of these leases in 2019 and and and 2020.

00:04:54 Richard
And the question was, are they within the 54 act, are they periodic tenancies because you've stayed after the end of the fixed term if you're excluded lease paying your rent yearly, in which case they're the yearly periodic tenancies within the 54 act? Are they licences, in which case they wouldn't be within the 54 act. Are they tenancies that will?

00:05:14 Richard
And why it's important to decide is because if the tenants, if they were within the 54 act as they've been paying their rent and so.

00:05:26 Richard
The tenants couldn't initiate a a a renewal because section 26 of the Act, whereby the tenants can initiate a a lease renewal only applies to terms of years certain exceeding a year.

00:05:40 Richard
Whether or not followed by a continuation tenancy or a term of year certain and thereafter from there to year, so it doesn't apply to periodic tenancies.

00:05:49 Richard
In which case the tenant will be in limbo post December the 28th 2017 if the if it's a tenancy at will or a licence, they can use the electronic communications code under the Digital Economy Act and they go through and you all on that process. So that's why it's significant.

00:06:10 Lizzie
So can you remind us what a tenancy at will is?

00:06:12 Richard
Yeah, it's a strange concept.

00:06:15 Richard
Whereby you've got a lease, you've got exclusive possession, but at any time either side can bring it to an end and people tend to think that tenancies at will once you start paying and the landlord accepts rent, become periodic tenancy. So this would be within the 54 act when the old leases came to an end.

00:06:37 Richard
And that's not so. I mean, that's quite clear, so I'll give you some of the history of it.

00:06:43 Richard
History goes back many years, but there was a case, Java and Akeel back in 1991, a Court of Appeal case.

00:06:52 Richard
It said there's not this automatic presumption everything depends on its facts.

00:06:56 Richard
And in that case, for instance, it was understood that we're negotiating the final lease and they paid them. The tenants pay three months in advance.

00:07:05 Richard
Negotiations drag on.

00:07:07 Richard
They paid paid another three months in advance.

00:07:11 Richard
Negotiations drag on still another three months and another three months.

00:07:16 Richard
And the tenants argue, I've got a periodic tenancy. I'm in the 54 landlord and tenant. You can't just tell me to go.

00:07:24 Richard
And the Court of Appeal decided that it's understood between the two of you. You're negotiating the final lease, and that's that's a tenancy at will, everything depends on its facts. But there's a tenancy at will, there's another case called AMS and AMS Housing Association Barclays Wealth trustees.

00:07:42 Richard
From 2014, the Court of Appeal case, where the initial fixed term excluded lease came to an end and the two of them, you know the start continued negotiating beyond the end of the fixed term. Paying the tenant was paying their rent, you know in advance. And again the Court of Appeal said it's the tenancy at will. The tenant cannot just up and leave without notice, so it had been a periodic tenancy that had to give a yearly periodic six months notice terminating on an anniversary day.


00:08:12 Richard
And they made it quite clear that there's no automatic presumption of a periodic tenancy just because you're paying your rent. Everything again depends on its facts. There was a couple of cases. There was a case that went against it called the Smoke Club and Network Rail infrastructure, which was near London Bridge station. It was a bit different because it wasn't about 54 hour renewals near the Shard, Lizzie, but they it was a bit different because it was about compulsively purchasing for with Thames link.

00:08:44 Richard
They said in that particular case you know if you've got exclusive possession and your paying a rent, there's a strong presumption, but it can be rebutted.

00:08:52 Richard
But in this particular case, it wasn't rebutted, you know, strong presumption with tendency at will.

00:08:57 Richard
And there was a couple of cases. So I think we did podcasts on one in particular called Valley View and and the NHS property services in 2022, which was a medical practise with the tenants and the immediate landlords were the NHS property services.

00:09:17 Richard
And they've moved in, in 2007, hardly negotiated at all, but half heartedly negotiated over 14 years. I don't think they can negotiate at all, for the first 4 years and I find amazing at the time that the court decided that was also a tenancy at will.

00:09:33 Richard
And this particular case said, because there's, you know, the tenant will not be able initiate the lease renewal process and if the landlord doesn't bother serving a section 25, these the the lease is not going to be renewed for that reason and for the fact that this separate statutory protection and they've been this series of cases over since 2018.

00:10:00 Richard
Which the parties would have known about that because they were involved in quite a few of the cases of their predecessors. Well then it's there's a tendency at will. There's no evidence they intended a periodic tenancy, and you need that evidence.

00:10:15 Richard
And so that's what that one and I think we've not heard the last of it yet another nail in the coffin of the 54 Landlord and Tenant Act.

00:10:23 Richard
You see the background facts really depends on the fact you know whether the communication has code applies or the 54 Act and I'm sure you can sort of extrapolate two leases more generally. Courts have decided to indirectly get rid of the 54 Act. Tenancies at will are within the 54 act case called Wheeler and Mercer in 1950.

00:10:50 Lizzie
Thank you very much, Richard.

00:10:51 Richard
My pleasure, Lizzie. And until the next time.