How do wayleaves attach to property?

Question

Suppose thast the is a property owner A. A has a neighbor B who has asked a telecoms company to provide broadband to B's property, but to do this the company will need to dig a trench that crosses a small corner of A's property. Accordingly, the company has written to A asking A to grant a wayleave to allow them to do this.

Are wayleaves binding on all future owners of a property?

How would a prospective purchaser of a property find out about the existence of a wayleave? Are wayleaves included in conveyancing property searches or otherwise lodged with an authority that could be consulted? Or are they a private matter between the land owner and the telecoms company that could go undiscovered during conveyancing, and if so what recourse would a new property owner have if they later discovered the existence of a wayleave they felt diminished the value of their purchase?

Answer 1

Q1: is not a legal question - it depends on what a prospective purchaser is willing to pay.

Q2: According to the attached pdf...

• 9. This agreement is binding. You cannot cancel, amend or alter it without our written permission, except as stated in the code.
• 10. This agreement will remain in force from the date written above for the whole period during which we are an operator (as defined in the code).

Answer 2

A wayleave is a contractual right to enter or use property. Unlike an easement or lease, it is not a property right. Therefore, it is not registrable on the Land Registry and does not normally “run with the land.” But in the specific context of access agreements with network operators, the departmental guidance you have linked to explains that:

The difference between [wayleaves, easements and leases] had particular importance in the past, because the relevant form determined whether any subsequent purchaser of the land would be ‘bound’ (required to uphold) rights granted under the agreement and what Land Registry requirements applied. The Code reforms introduced in 2017 dealt with this issue. Regardless of form of code agreement (wayleave or easement), successors in title (subsequent owners or purchasers) remain bound to code rights previously agreed.

The Code is the revised Electronic Communications Code implemented by the Digital Economy Act 2017. Paragraph 10 of the Code provides that the “code rights” set out in paragraph 3, once granted in an agreement such as a wayleave, are binding on successors in title.

Paragraph 39 of the Code provides for landowners and neighbours to require operators to disclose the existence of code rights. This probably would not assist a prospective purchaser. However, paragraph 3.1 of the Standard Conditions of Sale provides that the seller is selling the land free from incumbrances, unless they are specified in the contract or the buyer knows about them. So, a prospective purchaser should be told about the wayleave by the seller, and if the seller fails to do this, the purchaser may be entitled to damages.