Wireless telecommunication towers and antennas are proliferating, raising unique lease issues that will have implications lasting longer than the average wireless telephone.
Local governments desire to promote the placement of antennas on existing towers and buildings, and to encourage the shared location of antennas further serve to make site leases more complicated.
While most wireless companies propose short preprinted agreements, the property owner must remember that this transaction is a real estate deal. Is the printed agreement a lease or something with less protection than a lease, such as a mere license?
Form of Lease. The property owner would be advised to compare the proposed form of agreement to a form long-term commercial lease. Is the owner indemnified? What about casualty or condemnation? Is there an obligation to restore the premises at the end of the term? Etc.
Term. What is the term of the agreement and does it commence at signing or at some future date when the antenna is erected (if ever)? Many tower agreements are for five years with a series of automatic renewals. What are the implications 25 years from now?
Rental Rate. Most antenna deals are for a relatively modest amount of money and this income must be measured against the implication of a long-term arrangement. Freestanding towers yield the highest rents at between $1,000 and $2,500 a month, but given that brokers are rarely involved, determining comparables is difficult. Shared roof locations may yield only $300 or $400 a month. In a long-term lease, should rent increase by CPI, or some other measure?
Permits. Government approvals can range from building permits to more complicated special exceptions and variances that may even require public hearings. Development plans may need to be approved for towers. And the property owner should carefully review applications and participate in the approval process so to be aware of conditions imposed on the property.
Alterations. Given the long term of these agreements, a property owner may desire or need to make alterations, repairs or other improvements to a site. Provision should be made to be able to require the wireless carrier to relocate on a site (maybe once every 10 years).
Noninterference. Agreements usually restrict the owner from doing anything that could interfere with the antenna. This provision can have severe implications for electric service in a building. But, more importantly, the wireless company should assure noninterference with building uses.
EMF. Electromagnetic fields and other environmental risks should be specifically assumed by the carrier.
Shared Sites. The possibility of having more than one carrier share a rooftop or tower can make the undertaking more lucrative for the property owner, but obviously must be addressed in the agreement.
Conclusion. Antenna agreements pay relatively modest rents and should be evaluated in light of the burden.
