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adProperty News

     
 
Leasing space for cell towers
Source : The Hindu Property Plus Published On : 2009-01-03 City : Chennai
LEGAL CHAT

R. L. NARAYANAN

If the cell tower is installed in the land owned by one or more persons, then it is almost like a regular lease

            Let us welcome the New Year with some towering concepts. The growth of technology ushers certain new dimensions to life. Situations will arise that one would be forced to negotiate things from a different angle than one is used to. Often, specific enactments relating to developing fields may not be available.

            The existing legal provisions will have to be then applied. However, this has to be done with the knowledge of certain special factors that may be present in such situations. Sometime back, cell towers made their appearance in various places. It was then a matter of technological knowledge to even identify these towers. Now, they have reached the threshold of common man. They have found their way to the lands and terraces of one and all. Leasing space or land for erection of cell towers will be of interest to public at large.

            Basically, cell towers are installed in land and also on rooftops or terraces. The cell service provider owns these towers and equipments. The service provider concerned takes the land or space, usually, on a long lease.

            The tower is installed in land or space. The lease conditions are normally to the effect that the service provider will have a right of renewal.

Many stringent conditions are imposed on the owner. If the cell tower is installed in the land owned by one or more may arise.

            There could also be instances of other arrangements. The landowner needs to look to his or her interest and ensure that his or her interest is well protected.

            The landowner also needs to understand his or her exposure to risks and work out a mechanism to cover or address the risks involved. Based on this understanding, proper documentation has to be made. However, in cases of installation of towers on rooftops or terraces, a few complicated issues may be involved.

First concern

            The first concern that the owner or owners may have is the type of arrangement that is to be entered into with the service provider.

            The implications of a long term lease have to be grasped. Many times, the service provider will want exclusivity.

            That is, the service provider may include terms in the documents to the effect that no other service provider shall be given space in the land or rooftop or terrace. These types of clauses may impinge the rights of the owner.

            The implications of design and installation of the tower on the terrace has to be understood. In apartment complexes, many issues may arise. The potential or impact of danger to one or more apartments, especially, those on the top floor have to be taken into account. Frequently, there would be a feeling that the interests of a few persons are being sacrificed. There would also be a general thought that the affairs leading to the installation and lease of towers lacks transparency, especially those relating to financial dealings. Scope for dissent, disputes and even litigations cannot be ruled out. These matters will have to be approached with sensitivity and caution.

            It is also possible that in the process of installation, actual damage is caused to the building or a portion of the building; the equipment that is to be installed may have wiring, cables, antenna, etc., which may have certain efforts. There could be problems of repairing the area in which the tower is installed or even in the vicinity of the tower. These issues have to be taken care of.

            At times, the installations may be effected in the roof or on parapet walls. Maintenance and other staff of the service provided may have to be given access to the installed area at all times, day and night.

            The installation of towers and equipments may result in space constraints. The installation and maintenance could cause noise and nuisance. Neighbours may have certain issues.

            The installations may cause a threat to the structural stability of the building. All these matters have to be properly addressed.

Health hazard

            There are cases where the cell tower had fallen or crashed resulting in accidents and other injury. In such matters the interest of the owners themselves may be affected. Insurance and other claims may arise. There could be an injury to a person or damage to a vehicle or other property. The potential health hazard if any, has to be looked into. The immediate manner in which these matters are taken for consideration and the action taken on these matters may also be guided by the lease documents.

            The fixing of responsibility or liability for such accidents or events would have to be provided for. Apart from these matters, the other wordings employed in the document, the rights and obligations of parties, availability of remedial measures in the event of breach and the mode and manner in which the disputes have to be resolved also has to be clearly spelt out.

            Furthermore, renewal and termination of lease has to be considered. Clear provisions for the same have to be included in the lease documentation.

            Depending on the facts and circumstances, there is also scope for having alternate arrangements, which are at least balanced, if not in favour of the owner.

            As the lease or other arrangement is effective over a period of very long term and in view of the fact that it is likely that it will be difficult to terminate the lease, it is best that the overall impact of entering into the same is fully understood.

            One should also be prepared for the effects of a future legislation, which may govern such leases or other arrangements.

The author is partner,

RANK Associates, Advocates, Chennai.

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