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Property Development Prevented by Cell Tower Lease

November 15, 2011

Leasing land for a cell tower can prevent you from developing or using your property. That’s because cell phone companies draft leases so that their use of the property is primary and yours is secondary.  For example, such leases typically say that you can’t do anything that would “interfere” with the cell company’s use of the land it is renting from you. 

“Interference” typically doesn’t just mean your radios interfering with theirs.  It includes your adding a building, increasing the height of a building or adding items on the roof which might interfere with their use.  In other words, your long term use and development of your property.

Cell phone leases typically (1) are now for 50 years or more and (2) have very few restrictions on how the cell phone company can use the land it is leasing from you.  So leases can really limit your use and development of your property by making the cell company’s use primary.  And often the non-interference clause covers any “nearby” land you own, not just the one where the cell tower will be.

The solution is to strike such clauses or negotiate a middle ground.  You may wish to look at our model leases for sample language on this point.

John Pestle has previously co-presented on topics related to cell tower leases and lease buyouts. Those seminars are available for purchase. Current Issues in Cell Tower Leases and Lease Buyouts is available as a CD with a reference manual. Cell Tower Lease Buyouts is available for purchase as an on-demand webinar.

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