a requested relocation may be considered a breach of the lease agreement, or the costs and responsibilities may fall on the association. Another consideration is whether the relocation will be temporary or permanent. As part of that consideration, boards need to identify what units will be directly affected by the temporary or permanent relocation and if there will be any potential concerns with noise, view impairment, or the like.
Expert Review
Ensuring that the association has a right to their own expert review of the cell phone tower work specs, in consultation with the board, is critical. If the board relies on the representations of its experts, then it will be protected. Directors should rely on information, opinions, reports, or statements of an expert in discharging their duties as a matter of statute to diminish any liability. Plus, the association should know exactly where the cell phone tower and related equipment will be located, its dimensions, and overall impact on the condominium.
Considerations that could affect the structural integrity of the building need to be assessed prior to installation.
This would include obtaining roof weight load distribution data, whether there will be any penetrations to the building envelope or if use of platforms under the cell phone tower and its related equipment is feasible. These are all considerations that could affect the structural integrity of the building and need to be assessed prior to installation.
Expansion Clauses
Does the lease agreement include language that would allow the cell phone carrier to expand their cell phone tower and related equipment in the future? What does that timeline look like, what is the scope of the expansion, and is there language that would require the cell phone carrier to obtain the board’s approval prior to expanding? Expansion provisions are fairly typical because technology is continually evolving, but the board should include a right to evaluate and approve any proposed expansion before it occurs, and have a technical expert weigh in on its potential impact, in any lease.
The board should include a right to evaluate and approve any proposed expansion.
Lease Cost Provision
How much is the cell phone carrier offering for use of the rooftop space? Typically, these types of leases include an initial lease period, usually 3 to 10 years, and then the ability to renew with a renewal period of usually 1 to 5 years. Associations should consider how rent will be increased to match the market value of the space being used. Increases may be an annual percentage or a more sophisticated
How much is the cell phone carrier offering for use of the rooftop space?
to the installation, maintenance, repair, and relocation (whether temporary or permanent) of a cell phone tower and its related equipment by the cell phone carrier.
Boards should remember that will look very different.
In summation, if a cell phone carrier offers a new lease or wants to renew an existing lease, boards should carefully negotiate the terms. When they do, boards should very different from what it does today. Additionally, if any major repairs are planned that might affect a cell phone tower or related equipment, those terms should be clearly outlined in the lease agreement. Identifying key points and negotiating such leases carefully will put an association in a better position in terms of protection and hedging against liability.
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