EE Limited & Anor v The Mayor and Burgesses of the London Borough of Wandsworth

Whether an occupier who remains after a lease expires is a tenant at will or a periodic tenant depends on the parties’ objectively assessed intention in all the circumstances. Payment of rent alone creates no presumption of a periodic tenancy. Where the former lease was contracted out of the Landlord and Tenant Act 1954, with no evidence of changed intention, that context may support a tenancy at will. An operator under a periodic tenancy protected by that Act may seek a replacement Code agreement under Part 4; that conclusion was obiter here. Joint operators may give notice together in separate identical forms. A notice remains in the prescribed form where omitted wording is repeated elsewhere and all required information is present.

The appellants, EE Limited and Hutchinson 3G UK Limited, operate mobile networks and had occupied rooftop apparatus space under a fixed-term lease from the respondent, the London Borough of Wandsworth, the freeholder. The lease expired in 2013 and had been contracted out of the Landlord and Tenant Act 1954; the operators remained in occupation and continued paying rent. They sought Code rights under Part 4 of the Electronic Communications Code.

The First-tier Tribunal found that the operators held a periodic tenancy protected by the 1954 Act, could not seek a new agreement under Part 4, and had served invalid notices. The operators appealed. The Upper Tribunal considered their status after expiry, the Part 4 jurisdiction, whether their joint notices were valid, and whether the notices used Ofcom’s prescribed form.

1. Holding over. The appeal succeeded on the first issue. Whether occupation after a lease expires is under a tenancy at will or a periodic tenancy depends on the parties’ objectively inferred intention in all the circumstances. Payment of rent is neutral and does not itself create a presumption of periodic tenancy. The former lease’s exclusion of the Landlord and Tenant Act 1954 was highly significant: there was no evidence that either party had changed its intention to avoid that regime. The rent-demand caveats supported a tenancy at will, while the requests for consent to works were neutral. The FTT had given insufficient weight to the agreed facts and its conclusion did not follow from its premises. The Tribunal set aside its finding and substituted a determination that the operators held as tenants at will. The reasoning applied the approach in Javad v Aqil [1991] 1 W.L.R. 1007 and Barclays Wealth Trustees (Jersey) Limited v Erimus Housing Limited [2014] EWCA Civ 303.

2. Part 4 jurisdiction. This issue was obiter because the operators were tenants at will. The judge nevertheless held that an operator under an unwritten periodic tenancy protected by the 1954 Act could use Part 4 to obtain a new Code agreement. The reasoning in Cornerstone Telecommunications Infrastructure Limited v Compton Beauchamp Estates Limited [2022] UKSC 18 concerned an operator with a fixed-term lease and a positive right to seek renewal under section 26. A periodic tenant’s contingent ability to seek renewal only in response to the landlord’s action did not place it in the same position. Preventing access to Part 4 would leave the operator unable to obtain the Code rights it needed. The judge respectfully disagreed with the contrary obiter conclusion in AP Wireless II (UK) Limited v EE Limited and Hutchison 3G UK Limited (Equipoint) [2026] UKUT 45 (LC). She also considered that the same reasoning applied to a written periodic tenancy, notwithstanding paragraph 6(2) of Schedule 2 to the Digital Economy Act 2017.

3. Joint notices. The appeal succeeded on the third issue. The two operators sent separate, identical notices together in one covering letter, with a single draft agreement naming them as joint tenants. Taken together, these were a valid joint notice. Once the operators gave notice together, their joint occupation was disregarded in identifying the occupier, consistently with the ratio of Compton Beauchamp [2022] UKSC 18.

4. Prescribed form. The appeal succeeded on the fourth issue. Paragraph 88 of the Code makes a notice invalid if it is not in Ofcom’s prescribed form, but a de minimis departure does not necessarily mean that the notice is outside that form. Here the omitted sentences repeated the ADR information elsewhere in the notice, so no required information was missing. The notice was valid. The judge applied the guidance in AP Wireless [2026] UKUT 45 (LC), distinguished the procedural omissions considered in A1 Properties (Sunderland) Ltd v Tudor Studio RTM Company Limited [2024] UKSC 27 and Avon Freeholds Limited v Cresta Court E RTM Company Limited [2025] EWCA Civ 1016, and distinguished the notice error in Mannai Investment Co Limited v Eagle Star Life Assurance Co Limited [1997] UKHL 19. Obiter, if all instances of the ADR information had been omitted, the notice would have been invalid even without prejudice.

5. Disposition. The appeal succeeded on issues 1, 3 and 4. The FTT has jurisdiction, and the reference will proceed there.

1. Upper Tribunal (Lands Chamber): Appeal allowed on issues 1, 3 and 4. The FTT’s tenancy-status conclusion was set aside and replaced with a determination that the appellants held as tenants at will. The reference will proceed in the FTT. [2026] UKUT 299 (LC) .
2. First-tier Tribunal (Property Chamber): On reference BIR/00CN/ERO/2024/0613, found that the appellants held a periodic tenancy protected by the 1954 Act, could not apply under Part 4 of the Code, and had served invalid notices. The Upper Tribunal reversed the findings on appeal.