Question 1

Stopping a freeholder from erecting a phone mast

Accepted Answer

Our freeholder is trying to install a mobile phone mast on the roof our block. The majority of residents are against this. Is there anything we can do stop him? Could a way be for lessees to get together and buy the freehold? The FPRA replies: A few years ago several members were raising queries such as your regarding mobile phone masts. More recently the issue seems to have gone quiet. Other people have also raised objections on health grounds but I am not aware of anyone successfully resisting on health and safety grounds the construction of these masts. Although there are some experts who disagree, the consensus accepted by the Government, local authorities, etc. is clearly that these do not pose any risk to health. It is just possible that the terms of your leases may give some grounds for objecting. To show this one would need to show that the legal structure was so tightly set up that the freeholder cannot make any alterations in use, etc., which would allow the changes necessary to erect the mast. To give further consideration to this I would need to see a specimen copy of your lease, but I am not particularly optimistic that this will provide a ground for objection. If you want me to look into this please send a copy to the office as soon as possible. You mention that the freeholder would be in breach of their own lease of the top flat that they would need to gain access to the mast – it is possible that they may be able to get around this by the simple expedient of bringing the lease to an end by merging the lease in the freehold! One of the few grounds for objection that I have come across which seems to hold water is that, by granting a lease (of the roofspace and/or the airspace above the roof) to the Mobile Phone Company, the freeholders would be making a disposal of part of the common parts which would trigger the “right of first refusal” provisions of Part 1 of the Landlord and Tenant Act 1987. These provisions usually apply when a freeholder sells the freehold “over the heads” of the leaseholders to e.g. another property company: their effect is to allow the leaseholders to acquire the freehold by matching the price paid by the outsider. However, the Act refers to the disposal of an interest in any common parts; “common parts” includes the “structure and exterior” of a building. So it seems at least arguable that any lease involving the roof is going to trigger the provisions of the LTA 1987. It does not sound as though your freeholder has complied with the LTA 1987 by serving you with formal notice of an intended disposal of the common parts. If this the case then you could write to them, saying that you have obtained legal advice to the effect that any proposed lease involving the roof or the roofspace would amount to a disposal of part of the common parts,, and reminding them that under section 10A LTA 1987 disposing of part of the common parts without complying with the LTA 1987 is a serious criminal offence. I would, however, stress that if you do establish the right of first refusal, it does not give you, in a case such as this, the right to buy the roof or any portion of it; it would be a right for those qualifying tenants who wished together to take a lease of the same parts of the building as the landlord was proposing to lease to the mobile phone company, and on the same terms. In other words, you would have to match whatever annual rent they are prepared to pay. This may be substantial, so it hardly seems a realistic long term option. It may, however, serve to buy time if your real objective is to buy the freehold before any deal is concluded. If a landlord is about to make a disposal and has not complied with LTA 1987 it is possible for a court to make an injunction to restrain the landlord from making the disposal. The making of an injunction is, however, in the discretion of the court, and if there was no reasonable prospect that the leaseholders would exercise the right to acquire the interest on the same terms as was being proposed, I could well see a judge refusing to make an injunction, as it would be pointless to do so. With regards to the procedure on collective enfranchisement i.e. getting together to buy the freehold, I would suggest that you look at the information as the procedure and also on valuation which is on the LEASE website: http://www.lease-advice.org/newintro.htm. That sets out the relevant criteria you would have to satisfy. Note in particular that you would need to have the owners of at least half the flats “on board”. Have a look at the information on procedure and valuation, and let us know if you have any specific queries. The valuation of the freehold may be increased by the possibility that the freeholder would be able to make money by leasing the airspace over the block for a mobile phone mast. This sort of argument is sometimes dismissed by the Leasehold Valuation Tribunal on the basis that it is too speculative, but it obviously strengthens the freeholder’s hand if it can demonstrate to an LVT that it has a firm offer from a mobile phone company for such a development. ……………………………………………………….. Supplementary answer, with reference to the specifics of the questioner’s lease: I have now had a look through your lease, and I do not think it provides a conclusive solution to your problems. The obligations of the Lessor under your lease do not seem to me to be inconsistent with their permitting a mast to be erected on the roof. You mentioned in your original query that they planned to use one of the flats to gain access to the roof. It is not, however, clear to me whether this would involve any permanent alteration to the flat. If they are proposing simply to use the flat to gain access to the roof during construction works, it would be difficult to show that this would breach the terms of the lease. If, on the other hand, some electrical installation connected with the mast were to be installed in part of the flat, and the residential part of the flat were to be correspondingly reduced, this might just be held to be a breach of the leases, in that Recital (2) on page 2 of the lease envisages that all the flats should be let on similar terms, and recital (3)) envisages mutual enforceability of the lease covenants, including the restrictions in the lease. Clause 14 of the Sixth Schedule then states the flats shall be used “for the purpose of a single private residence only” and “nor shall any trade or business be carried on”. Whilst I think the Lessor is in law entitled to do what it wishes with the roof, it may not be entitled to change the use of any part of the building which was intended to be, and has been, included within the boundaries of a flat. I cannot see that a court would see fit to intervene if the mobile phone mast required, say, the installation of electronics the size of a meter-cupboard in the top flat; but it might be a different story if a room were to be used, or a room had to be considerably reduced in size to accommodate such an installation. I do not think the fact that the lease of one of the top flats is at present owned by the Lessor would necessarily defeat these arguments; and further, because of recitals (2) and (3), I do not think the Lessor can get around the difficulty just by bringing the lease that it owns to an end.

Question 2

Stopping a freeholder from erecting a phone mast

Accepted Answer

Our freeholder is trying to install a mobile phone mast on the roof our block. The majority of residents are against this. Is there anything we can do stop him? Could a way be for lessees to get together and buy the freehold? The FPRA replies: A few years ago several members were raising queries such as your regarding mobile phone masts. More recently the issue seems to have gone quiet. Other people have also raised objections on health grounds but I am not aware of anyone successfully resisting on health and safety grounds the construction of these masts. Although there are some experts who disagree, the consensus accepted by the Government, local authorities, etc. is clearly that these do not pose any risk to health. It is just possible that the terms of your leases may give some grounds for objecting. To show this one would need to show that the legal structure was so tightly set up that the freeholder cannot make any alterations in use, etc., which would allow the changes necessary to erect the mast. To give further consideration to this I would need to see a specimen copy of your lease, but I am not particularly optimistic that this will provide a ground for objection. If you want me to look into this please send a copy to the office as soon as possible. You mention that the freeholder would be in breach of their own lease of the top flat that they would need to gain access to the mast – it is possible that they may be able to get around this by the simple expedient of bringing the lease to an end by merging the lease in the freehold! One of the few grounds for objection that I have come across which seems to hold water is that, by granting a lease (of the roofspace and/or the airspace above the roof) to the Mobile Phone Company, the freeholders would be making a disposal of part of the common parts which would trigger the “right of first refusal” provisions of Part 1 of the Landlord and Tenant Act 1987. These provisions usually apply when a freeholder sells the freehold “over the heads” of the leaseholders to e.g. another property company: their effect is to allow the leaseholders to acquire the freehold by matching the price paid by the outsider. However, the Act refers to the disposal of an interest in any common parts; “common parts” includes the “structure and exterior” of a building. So it seems at least arguable that any lease involving the roof is going to trigger the provisions of the LTA 1987. It does not sound as though your freeholder has complied with the LTA 1987 by serving you with formal notice of an intended disposal of the common parts. If this the case then you could write to them, saying that you have obtained legal advice to the effect that any proposed lease involving the roof or the roofspace would amount to a disposal of part of the common parts,, and reminding them that under section 10A LTA 1987 disposing of part of the common parts without complying with the LTA 1987 is a serious criminal offence. I would, however, stress that if you do establish the right of first refusal, it does not give you, in a case such as this, the right to buy the roof or any portion of it; it would be a right for those qualifying tenants who wished together to take a lease of the same parts of the building as the landlord was proposing to lease to the mobile phone company, and on the same terms. In other words, you would have to match whatever annual rent they are prepared to pay. This may be substantial, so it hardly seems a realistic long term option. It may, however, serve to buy time if your real objective is to buy the freehold before any deal is concluded. If a landlord is about to make a disposal and has not complied with LTA 1987 it is possible for a court to make an injunction to restrain the landlord from making the disposal. The making of an injunction is, however, in the discretion of the court, and if there was no reasonable prospect that the leaseholders would exercise the right to acquire the interest on the same terms as was being proposed, I could well see a judge refusing to make an injunction, as it would be pointless to do so. With regards to the procedure on collective enfranchisement i.e. getting together to buy the freehold, I would suggest that you look at the information as the procedure and also on valuation which is on the LEASE website: http://www.lease-advice.org/newintro.htm. That sets out the relevant criteria you would have to satisfy. Note in particular that you would need to have the owners of at least half the flats “on board”. Have a look at the information on procedure and valuation, and let us know if you have any specific queries. The valuation of the freehold may be increased by the possibility that the freeholder would be able to make money by leasing the airspace over the block for a mobile phone mast. This sort of argument is sometimes dismissed by the Leasehold Valuation Tribunal on the basis that it is too speculative, but it obviously strengthens the freeholder’s hand if it can demonstrate to an LVT that it has a firm offer from a mobile phone company for such a development. ……………………………………………………….. Supplementary answer, with reference to the specifics of the questioner’s lease: I have now had a look through your lease, and I do not think it provides a conclusive solution to your problems. The obligations of the Lessor under your lease do not seem to me to be inconsistent with their permitting a mast to be erected on the roof. You mentioned in your original query that they planned to use one of the flats to gain access to the roof. It is not, however, clear to me whether this would involve any permanent alteration to the flat. If they are proposing simply to use the flat to gain access to the roof during construction works, it would be difficult to show that this would breach the terms of the lease. If, on the other hand, some electrical installation connected with the mast were to be installed in part of the flat, and the residential part of the flat were to be correspondingly reduced, this might just be held to be a breach of the leases, in that Recital (2) on page 2 of the lease envisages that all the flats should be let on similar terms, and recital (3)) envisages mutual enforceability of the lease covenants, including the restrictions in the lease. Clause 14 of the Sixth Schedule then states the flats shall be used “for the purpose of a single private residence only” and “nor shall any trade or business be carried on”. Whilst I think the Lessor is in law entitled to do what it wishes with the roof, it may not be entitled to change the use of any part of the building which was intended to be, and has been, included within the boundaries of a flat. I cannot see that a court would see fit to intervene if the mobile phone mast required, say, the installation of electronics the size of a meter-cupboard in the top flat; but it might be a different story if a room were to be used, or a room had to be considerably reduced in size to accommodate such an installation. I do not think the fact that the lease of one of the top flats is at present owned by the Lessor would necessarily defeat these arguments; and further, because of recitals (2) and (3), I do not think the Lessor can get around the difficulty just by bringing the lease that it owns to an end.

Stopping a freeholder from erecting a phone mast

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