Upper Tribunal clarifies tenancy status for telecoms operators after lease expiry

A recent judgment from the Upper Tribunal provides important guidance on the legal status of telecoms operators who remain in occupation after the expiry of their contracted‑out lease.

The ruling in AP Wireless II (UK) Ltd v EE Ltd & another handed down on 9 February 2026 will be of particular interest to landlords, telecom infrastructure owners and mobile network operators navigating rights and liabilities under the Electronic Communications Code (“the Code”).

Background to the dispute

The case concerned a rooftop site at the Equipoint building in Birmingham which telecoms operators, EE Ltd and Hutchison 3G UK Ltd, originally occupied under a contracted‑out lease which expired on 28 February 2015.

Despite the expiry:

• The parties did not formalise a new agreement.
• The operators remained in occupation, continued using the equipment and paid rent.

In March 2023, the operators served a paragraph 20 and 27 Notice under Part 4 of the Code seeking new Code rights. By August 2024, proceedings were commenced before the First‑tier Tribunal (“FTT”), and later appealed to the Upper Tribunal (UT) by AP Wireless II (UK) Ltd (“APW”), which by then had taken over the reversionary interest.

Tenancy at will or a periodic tenancy?

Whether the operators’ occupancy was a tenancy at will or a periodic tenancy was the central issue and the Upper Tribunal held:

1. Operators were occupying under a tenancy at will, not a periodic tenancy.
2. A periodic tenancy (even if implied) may carry security of tenure under the Landlord and Tenant Act 1954—but a tenancy at will does not.

The Tribunal noted:

• The parties had not agreed new terms after the 2015 expiry;
• Their dealings reflected a temporary, unformalised holding arrangement—hallmarks of a tenancy at will; and
• There was no evidence of a shared intention to create an ongoing periodic tenancy.

This confirmed the FTT’s conclusion and aligned with existing authority on implied tenancies.

Why this judgment matters?

A tenancy at will allowed the operators to apply for a new Code agreement under Part 4 without the restrictions which apply to protected business tenancies. This preserves the Code’s policy objective of facilitating telecoms rollout, even where legacy lease arrangements have drifted into informality.

Validity of the Notice under the Code

AP Wireless also challenged the validity of the March 2023 paragraph 20 Notice, arguing it lacked Alternative Dispute Resolution (ADR) information required by statutory amendments (which took effect on 7 November 2023).

The Upper Tribunal rejected this argument:

• The Notice was served before the amendments came into force; and
• The amendments were not retrospective, as nothing in the legislation indicated they should be.

Therefore, the Notice remained valid, and the operators were entitled to pursue new Code rights.

Jurisdiction and entitlement to a new Code agreement

The Upper Tribunal confirmed:

• The FTT had jurisdiction to impose a new Code agreement;
• The operators were legally entitled to seek a Code agreement while occupying under a tenancy at will; and
• APW’s appeal against the FTT decision was therefore dismissed.

The decision aligns with the wider Code framework, which aims to prevent stalled negotiations or expired leases from impeding mobile coverage and infrastructure rollout.

What this means for landlords and for operators

For site providers / landlords:

• Failure to act can default into a tenancy at will. If parties allow an expired lease to drift without formal renewal, the operator’s occupation may be treated as a tenancy at will—which reduces the landlord’s control.
• Challenging notices may be difficult if based on later legislative changes; amendments will not apply retrospectively without clear wording.
• Clear, proactive lease management is essential to avoid losing leverage.

For mobile network operators:

• Continuing in occupation after lease expiry does not necessarily undermine the ability to seek Code rights.
• The ruling confirms that operators may regularise their position through Part 4 applications, even where the formal lease position has lapsed.
• The decision reinforces the Code’s intention: connectivity should not be compromised by outdated property arrangements.

Key takeaways from AP Wireless II (UK) Ltd v EE Ltd & another judgment

1. The judgment confirms a tenancy at will was in place, and that simply remaining in occupation after the lease expired, without agreeing new terms, does not generally create a periodic tenancy.
2. It also clarifies that notices served before the ADR amendments remain valid, as legislative updates only apply prospectively.
3. The ruling shows that operators are still able to secure Code agreements even where earlier lease arrangements were informal or loosely structured.

How Hamlins can help

The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you would like a conversation to find out how we might help you, please get in touch.