Share: Share on Facebook Share on Twitter Share on LinkedIn I recommend visiting to read:%0A%0A {0} %0A%0A {1}

How does the Digital Economy Act affect exercise of break clauses

Alex Charlesworth • 02/04/2020
In the two years since the Digital Economy Act 2017 came into effect, it is clear that it is causing considerable alarm to occupiers looking to issue break notices, as the ability to break may now be jeopardised.

The act amends the Electronic Communications Code with effect from 28 December 2017. The code does not just apply to rooftop and mobile telecoms installations; it also covers agreements to supply network cabling and services to occupiers (often for fixed-line telecoms/internet connections), and the termination of those agreements.

An occupier must give 18 months’ notice to terminate a code agreement. Operators can oppose this and have three months to serve a counter-notice and apply for a court order for that agreement to continue.

Once an agreement has been terminated, if the operator hasn’t removed its equipment, an occupier must serve a further notice giving them a reasonable period of time to remove the apparatus. The occupier can apply to a court for an order enforcing or granting removal rights.

At a minimum, the time period will be 18 months, plus the time taken to remove the equipment. Our recommendation is to start the process at least 2 years ahead of any break date.

Operating a vacant possession break clause may be invalidated by the presence of telecoms equipment for two reasons:

  • First, breaks often require the termination of third-party rights. The landlord or purchaser must be able to assume and enjoy immediate and exclusive possession, occupation and control of the premises. The longer notice periods in the code compared with most break clauses may mean you cannot meet these requirements unless you serve your code notice before you serve your break notice.

  • Second, the property must be empty of chattels where these substantially prevent or interfere with the enjoyment of the right of possession over a substantial part of the property. In the case of data cabling and telecoms equipment, there has been no legal clarification and it is safest to err on the side of caution. All telecoms equipment should be removed from the premises by the break date, unless (in the case of fixed line connections) the landlord expressly agrees to it being retained, perhaps for the benefit of an incoming tenant.

In summary, to comply with a vacant possession break clause, a well-advised tenant will ensure sufficient time for terminating and removing any telecoms rights and equipment.

Co-authored with Alison Hardy External Link, a Partner at Ashurst.

This article was first published in Property Week 27 March 2020


Cost Consultancy

We offer a comprehensive range of cost consultancy services to meet your needs throughout the building and project lifecycles.

Learn More
Building Consultancy

With extensive commercial expertise and a deep understanding of the property life-cycle requirements of investors, occupiers, lenders and developers, our building consultancy team provides specialist advice across the full spectrum of building surveying services.

Learn More
Project Management

Cushman & Wakefield’s Project Management team comprise a group of dedicated and experienced project management professionals delivering high quality schemes across a selection of Client sectors throughout the UK.

Learn More


Glass office facade with tree Australia
Insights • Sustainability

Sustainability Trends

Sustainability and ESG is now front of mind for landlords and occupiers; we review the latest in sustainability real estate trends.
Thomas Vazakas • 14/06/2022
UK Residential Development Land report
Insights • Residential

Residential Development Land Report

The London residential land market has seen mixed success in recent times, whilst the South East is seeing record land values being achieved.

Charles Whitworth • 13/06/2022
Self Storage

UK Self Storage Annual Report 2022

The Self Storage Association UK Annual Industry Report provides a comprehensive overview into the self storage sector.
Philip Macauley • 20/05/2022


Get in touch with one of our professionals.
With your permission we and our partners would like to use cookies in order to access and record information and process personal data, such as unique identifiers and standard information sent by a device to ensure our website performs as expected, to develop and improve our products, and for advertising and insight purposes.

Alternatively click on More Options and select your preferences before providing or refusing consent. Some processing of your personal data may not require your consent, but you have a right to object to such processing.

You can change your preferences at any time by returning to this site or clicking on Cookies.
Agree and Close
These cookies ensure that our website performs as expected,for example website traffic load is balanced across our servers to prevent our website from crashing during particularly high usage.
These cookies allow our website to remember choices you make (such as your user name, language or the region you are in) and provide enhanced features. These cookies do not gather any information about you that could be used for advertising or remember where you have been on the internet.
These cookies allow us to work with our marketing partners to understand which ads or links you have clicked on before arriving on our website or to help us make our advertising more relevant to you.
Agree All
Reject All