Who is at Fault? Who will Pay? Legalities Q&A

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Who is at fault, better question, who will pay for the changes when there are installation problems? I thought that I would go over a Q&A session that might help all of you deployment people out there. When putting in a system these are all issues that I have heard about in the past.

Many people ask me about the leasing and permitting side of the business. I am talking about problems that site dog-tags_clearbackgrondsurvey people and installers may run into. Now the site acquisition people know what they are doing, so this is probably old news for them. What about the people on site? Are you going to be held responsible for problems that arise if there is a permitting issue? Remember, the problem is usually with the landlord, this is after the site acquisition teams are out of the picture. It’s the installer who gets yelled at by the landlord or gets the fine from a passing cop, not the site acquisition people! The survey team may need to do some due diligence before sending the crew out to do the installation. So here are some questions that I asked Rob Turner in Atlanta. Rob is a partner in a law firm that deals with real estate and site infrastructure and an all around nice guy. His firm is 360 Venture Law if you’re interested. Hey, this is free advice from someone who deals with this daily! I have 12 questions that I wrote to Rob and he answered below. I cover lese, permitting, and problems with installation.

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  1. When looking at a building, how do I find out who owns/manages the site?
    • Beyond a direct inquiry with the front desk security officer (if the building has one), a helpful starting point is the county tax assessor’s office. Typically, you can search property owner records with the assessor’s office.  Once you determine the owner, you can then contact them for an introductory discussion (which may lead you to any property manager retained by the owner).
  2. When planning to mount on the roof, do I still need to go through zoning and permitting?
    • This answer assumes that the location has been leased from the property owner and that it was confirmed that local zoning allows communications antennas on rooftops prior to the W4W_20Cover_202lease. Prior to any construction and/or installation, the tenant will need to: 1) confirm with the local ordinances whether additional building permits are required for the antenna installation (most likely); and 2) review the lease agreement to determine what types of consents, etc. may be needed from the landlord (note: even if consent not required by the lease, from a liability protection standpoint, the tenant is STRONGLY encouraged to obtain the landlord’s written consent to this work).
  3. If I want to mount my small cell on a wall, say 10’ above ground, would the person that managed the roof be the contact? In other words, would the roof manager also manage the mounting to the lower parts of a building?
    • Always start with the underlying site lease agreement to determine what the ‘leased premises’ are and the extent of your permitted use (basically: what space can you use on the property to locate your antenna and equipment). The lease will also indicate who the appropriate contact persons are for any property-related questions.  For the question above, the person that manages the rooftop is probably also responsible for managing the overall exterior of the building.
  4. If I decide to mount my radio head in a stairway window, who would help me coordinate the mounting.
    • The property owner/property manager contact should be your starting point. This is important because in addition to coordinating the actual on-site work, there may be a need for this type of mounting to occur after normal business hours to avoid disturbing other tenants in the building.  As noted with the other comments above, the carrier should always confirm in its lease whether landlord’s consent is required before completing any such work – especially that involves drilling into the building’s exterior structure.
  5. If someone has to core drill through a floor and followed the drawings but cause a tenant problems, who would be at fault?
    • For this scenario and in all likelihood, the party that completed the drilling is going to have some level of responsibility. Virtually all communications infrastructure lease agreements include ‘indemnity’ provisions.  A lease indemnity is where a tenant agrees to pay the landlord for any costs/expenses/damages suffered by the landlord from tenant’s actions.  In this scenario, whether the core drilling was conducted by the tenant (or one of its subcontractors) they can certainly expect the landlord to ask them to pay for any damages they cause the other tenants within the building.
  6. If after the installation is completed and the equipment’s fans are very noisy in a building or on a street pole, what would happen if the nearby people complained? On a street is may be someone’s home. In a building it may be a tenant. What would happen when the people complain? Who would be held responsible for this resolution?
    • Guidance for resolving this type of scenario will come from the site lease agreement. If the equipment is located in a building and the fans, etc. are generating noise that impacts other tenants, this will be an issue for the landlord (having to deal with its other tenants) but likely one for the communications company as well (most leases have non-interference language Tower_20Worker_20Logbook_20Cover_20Final_203in them).  If we look to a street pole for example and nearby neighbors are complaining, the communications company will need to confirm they met all appropriate permits, etc. for their installation and operation.  Presuming they are properly permitted, they will need to factor in the potential impact on their ‘good will’ in the community by NOT taking action to mitigate the sound.  Just like many matters in real estate, this is a site-specific question.
  7. If there needs to be a new utility, (like power or backhaul), that is needed on the roof, should that be negotiated in the lease prior to the installation with the landlord?
    • This scenario is a common point of contention for carriers and landlords. Landlords want absolute control over their property/structures, while the tenant wants to ensure that it can construct and operate its antenna and equipment for the duration of the lease term without SOW_20Training_20Coverhaving to always ask landlord for permission.  Most leases will contain a broad ‘maintenance & upgrades’ provision that provide the tenants flexibility for ensuring their antenna and equipment are current over the lease term.  Depending on how the lease agreement established utility rights within the building (e.g., through a dedicated conduit, risers, etc.), and if the tenant requires additional space within the building to run utilities to the antenna and equipment, coordination with the landlord will be required.  Note: if the tenant believes landlord consent is required, that has the potential to be a long lead time item.
  8. When choosing a pole to mount on in a city street, how is the lease handled?
    • Under this scenario, the carrier will first have to determine who owns the pole. Assuming the pole is owned by a utility provider, the tenant is going to have to coordinate a lease agreement with that city’s utility provider for the actual space on the pole.  Note: there are a number of other variables to address with pole mounted antenna including power to the mounted equipment and ensuring fiber access.
  9. For poles, if fiber is on one side of the street and not on the other, how hard is it to change an asset with utility or city owned poles? In other words, does one entity generally own all the poles?
    • Within a given municipality, one or more utilities may control most/all of the poles. As such, a prospective tenant will need to coordinate its potential use with the appropriate utility operator.  Speaking to the question on changing from one side of the street to the other, this is where a tenant should put a lot of time and effort into its pre-lease due diligence to determine where the underground utilities are located on the sides of a given road – that information will no doubt help guide the potential tenant to which poles will best serve its needs.
  10. If fiber is needed, who decides if it has to be run overhead or underground?
    • The fiber question will be determined in part by: the utility easements on either side of a particular road; the particular company that will run the fiber and what types of municipal permits are required for the work, and how long it takes to obtain those permits. The companies that install fiber have to address all of those factors, along with the carrier’s needs (e.g., how many access points along a particular route) to determine whether to locate fiber underground or overhead.
  11. If the installer mounts a small cell in the wall as per the landlords specifications and there are problems, who is at fault?
    • This scenario will be fact-dependent on what happened and any damages that arose from the event. Even though the carrier followed the landlord’s specs, if the carrier was negligent with its installation, it could be at fault and potentially liable to the landlord (and landlord’s other tenants).  See the comment above regarding indemnity for some more perspective.
  12. If there is a zoning issue after the fact or if the municipality fails the installation, how should each party proceed?
    • As a general rule, virtually all leases are structured so that if there are subsequent changes in laws and regulations that impact or limit the ability to operate a tower or roof-mounted antenna, that the tenant can terminate the lease without liability to the landlord.

So there you have it, the answers some of the questions I get asked. If you have more questions then let me know by reaching out to me at wade4wireless@gmail.com. If you would like to know more about Rob and 360 Venture Law, read on!

About Rob:  Rob Turner is a partner with the technology law firm 360 Venture Law, LLP based in Atlanta. www.360vlaw.com  Rob has a strong commercial real estate and communications infrastructure component to his law practice and has worked extensively with property owners throughout the country assisting them with cell tower and rooftop lease matters. He welcomes the opportunity to further discuss your particular property’s needs.  He may be reached at rturner@360vlaw.com.

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