Care is needed to ensure that utilities distributors negotiate and secure sufficient rights for their apparatus.
This applies particularly if there is a present (or potential future) need to lay cables and or to erect telecommunications masts, as emphasised by a recent case (Ralph Kline Ltd v Metropolitan and County Holdings Ltd ) has addressed the issue of airspace and highlighted the need for care.
Utilities distributors can often experience objections to the erection of masts (on substations) on the basis that the airspace had not been included in the leased property and erecting a mast above it would amount to trespass.
Freehold covenants sometimes prevent the erection of any structures or masts above a certain height.
Ralph Kline Ltd v Metropolitan and County Holdings Ltd 
Considering the construction of the lease as a whole, the Judge held that airspace was included in the lease.
Some of the factors taken into consideration by the Judge when reaching his decision included:
• The wording of the lease included outdoor parts of the property referred to as “grounds and gardens” – the inclusion of those areas suggested that airspace might also be included. The Judge, as an aside, noted that if the roof of a building is expressly included in the leased property, the Court may be more likely to construe the lease as including the airspace (although this factor alone is not sufficient or conclusive).
• The lease reserved the right for the landlord to lay or erect poles, wires and cables which would tend to suggest that the airspace was included. To suggest otherwise would mean the reservation of those rights was not necessary.
• The lease contained no exclusion of the structural or external parts of the property (as is typically seen in a lease of internal areas only).
• References in the lease to specific parts of the property did not (necessarily) imply that airspace was excluded.
• Whilst negotiating heads of terms, ensure express clarity as to whether airspace is to be included in the lease and involve legal representatives at an early stage.
• Ensure that if subsoil or airspace is to be included (or excluded), the wording of the lease is sufficiently clear. This is especially important when drafting a lease of part, as the Court may be more willing to decide that airspace has been excluded.
• Read the lease as a whole to ensure that the description of the leased property is drafted correctly and is consistent with the exceptions and reservations. If an area is to be excluded (except for access rights) from the leased property, any right or reservation in connection with it should not be referred to in the lease.
We would be happy to advise you further on any of the above, or any other queries you may have regarding landlord and tenant matters. If you have any questions, please contact Ian Barker 0345 901 2074 or Mark Egner on 0345 901 0916.