The First-tier Tribunal issues a decision in a telecoms case, providing critical guidance on the requirements of tenancy agreements contracting out of the Landlord and Tenant Act 1954 (‘the 1954 Act’), alongside the effect of misplacing associated documents.
In EE Limited and Hutchison 3G UK Limited (‘the Operators) v AP Wireless II (UK) Limited (‘the Site Provider’) (August 2025), the Operators sought to renew their agreement at a telecoms site under the 1954 Act, while the Site Provider argued this right had been excluded from the tenancy.
The Operators argued that service of the required warning notice by the Site Provider had been invalid, and that the Site Provider could no longer rely on the contracting out documents in any case as these had since been misplaced. In their decision, the Tribunal concluded that service of the warning notice had been valid and, as there is no requirement for the physical documentation to be retained, the Operators did not have the right to renew their tenancy agreement under the 1954 Act.
The law on “contracting out” of the 1954 Act:
The 1954 Act gives commercial tenants security of tenure, which grants them the right to renew a tenancy of premises unless the Landlord can prove grounds for this to be refused (a lengthy and exhaustive process). It is therefore commonplace for a landlord and tenant to agree in advance that the tenant is to waive their to right to renew their tenancy under the Act – to contract out of it. This process is subject to a number of requirements, including the landlord serving a warning notice on the tenant who is to then sign a declaration confirming they understand and accept the exclusion. These requirements are what came at issue before the tribunal.
The form of warning notice required:
Under the 1954 Act, it is required for there to be ‘some form of agreement which exclude[s] the provisions of the Act.’ While there is no prescribed wording to satisfy this, the regime provides that the agreement between parties to exclude security of tenure may be contained in the instrument creating the tenancy itself, such as a lease (or here, telecoms agreement). This was affirmed by the decision of the Tribunal who sided with the Site Provider in stating that ‘by incorporating the agreement as an express term of the tenancy the requirement for an agreement to be in writing is satisfied.’ This proves that substance is of more value than form in respect of warning notices under the 1954 Act.
The effect of misplacing documentation:
The second point at issue in the case was whether the validity of a contracting out agreement is reliant on the physical documentation of the warning notice and declaration being retained by a landlord, which was the argument of the Operator. Here, the Tribunal stated it was inevitable that documents are lost or misplaced, and that there is no requirement for the physical notices to be kept in order to be relied upon, as their procedural function has already been fulfilled. Further, it was suggested that delivery records or credible testimony alone may suffice to satisfy the requirement, as the key question is whether the notice has been properly served in the first instance. In this instance, it was decided it had been and so the Site Provider was able to rely on the exclusion of the 1954 Act.
Commentary:
Though it should be noted this is a decision of the First-tier Tribunal, it serves to clarify that endorsements confirming receipt of a warning notice within a lease instrument are sufficient evidence of procedural compliance. In addition, misplacing contracting out documents does not defeat the exclusion of security of tenure, provided service can be demonstrated. This decision also reinforces the importance of seeking legal advice to ensure the simplest path of proper procedure is followed when entering into tenancy agreements which are to be excluded from the 1954 Act.
