UK Construction and Law

Operators holding over on a Wandsworth roof were tenants at will, and the contracting out is what decided it

By Staff Writer  |  18 August 2026

The Upper Tribunal has set aside a finding that two mobile network operators became periodic tenants of a rooftop site after their lease ran out in 2013. Because the old lease had been contracted out of the 1954 Act, years of holding over and paying quarterly rent pointed to a tenancy at will. That opens the door to a new agreement under the Electronic Communications Code, on the Code's own basis of consideration.

EE Limited and Hutchinson 3G UK Limited v The Mayor and Burgesses of the London Borough of Wandsworth was decided on 7 August 2026 by Upper Tribunal Judge Elizabeth Cooke, on appeal from the First-tier Tribunal, Property Chamber. The site is on the roof of Castlemaine House, Culvert Road, London SW11, of which the borough is freeholder.

The old lease was granted on 27 May 2004 for a term of ten years from 18 February 2003, and was assigned to the operators by deed on 23 June 2010. Sections 24 to 28 of the Landlord and Tenant Act 1954 were excluded, so the lease was contracted out and did not continue when the contractual term ran out in February 2013. The operators stayed, and rent was demanded and paid quarterly for more than a decade. The First-tier Tribunal held that a quarterly periodic tenancy had arisen with the protection of the 1954 Act, which under the transitional provisions in Schedule 2 to the Digital Economy Act 2017 would have shut the operators out of the Code.

The contracting out did the work

The First-tier Tribunal had treated the case as falling within the passage in Javad v Aqil where, failing more, the inference from rent paid on a periodic basis is a periodic tenancy. The Upper Tribunal held that there was a good deal more. Payment of rent was neutral. Requests for landlord's consent to upgrade the apparatus were neutral too, and were as likely to have come from prudence as from any belief in a long-term interest. What told against a periodic tenancy was the contracting out itself: the parties had shown between 2004 and 2013 that they did not want the 1954 Act to apply, and nothing in evidence suggested either had changed its mind.

In light of those factors I have no hesitation in agreeing with the appellants that the FTT's analysis was wrong in law. The panel paid insufficient heed to the agreed facts which made it clear that this was not a 'without more' case, and its conclusion did not follow from its premises.

Upper Tribunal Judge Elizabeth Cooke

The wording on the rent demands mattered as well. Invoices issued from 15 May 2019 onwards carried the words lease expired and holding over, and later lease outstanding. The tribunal accepted that without prejudice is often used without thought, but treated those other words as apt to describe a tenancy at will and not a periodic tenancy, and read the accumulation of them as a landlord working quite hard to stop a new arrangement being inferred.

Why the distinction is worth money

The consequence is jurisdictional. A tenant at will can seek a Code agreement under Part 4, so the operators' reference goes back to the First-tier Tribunal. Consideration under the Code is calculated on an assumption that favours the operator, where the old code produced a market rent, so the tenure question decides the basis on which the site is valued as well as who can compel an agreement.

The appeal succeeded on three of the four issues, and the tribunal recorded that had it not succeeded on the first it would have succeeded on the second. The fourth is a useful point on notices. Two identical sentences about considering alternative dispute resolution had been deleted from a supplementary information section of the form prescribed by Ofcom. The same information appeared twice elsewhere in the form. The tribunal held that nothing prescribed was in fact missing, so the notice was in the prescribed form and was not invalidated. The absence of prejudice to the recipient was expressly not the reason.

For a landowner with apparatus on the roof, the practical lesson is that letting an expired contracted out lease drift is not a neutral act. The status the occupier acquires while nothing is being negotiated determines whether the site can be recovered on ordinary terms or becomes a Code site valued on Code assumptions, and the evidence a tribunal will use to decide it includes the standing wording a finance team prints on its rent demands.