(Updated: July 29, 2013. I’ve had a lot of comments about this post, all positive, so I start highlighting similar one-sided provisions in future posts.)
I’ve seen wireless carriers attempt land grabs before through a cell tower lease, but a current incarnation is particular amusing.
Framed as an “Emergency 911 Service” provision (hey, that sounds like something really important, right?), the carrier’s attorney has authored the lease provision below to allow the carrier to take as much additional land as the carrier needs without benefit of paying rent.
First, I’ll ask you to read the language below, exactly as stated by the wireless carrier, then I’ll parse it for you.
Emergency 911 Service. In the future, without the payment of additional rent and at a location mutually acceptable to Lessor and Lessee, Lessor agrees that Lessee may add, modify and/or replace equipment in order to be in compliance with any current or future federal, state or local mandated application, including but not limited to emergency 911 communication services.
Okay, piece by piece, let’s deconstruct this this one little sentence with its 58 words:
1. “In the future…” starts about 1 trillionth of a second from right now. Maybe even sooner. Okay, you’re in the future. Oh, by the way, the future never ends. This clause is good for the remaining term of of the lease to its final extension.
2. “…without the payment of additional rent…” Do I really need to tell you that this means no more moola for more land?
3. “…and at a location mutually agreeable to Lessor and Lessee…” Now wait just a minute. You’re thinking that you can just say there is NO mutually agreeable location, right? Nope. Most states impute a good faith term to contracts (including leases which are contracts for the occupancy of land for a term). This means that you can not mentally cross your fingers when you agree to this provision. Most likely a judge will ‘help you’ understand your duty to negotiate in good faith. Judges can be so very helpful. So how much space is available at the location? As much as the wireless carrier wants to meet the rest of the provisions
4. “…Lessor agrees that Lessee may…” You, the Lessor, agree that your tenant at the time can do anything described immediately after, so lets look at each thing in turn.
5.”…add…” start with what’s at the site and put more stuff within the existing leased area, or in the new area that they just got for free.
6. “…modify…” is to take something there and change it, mostly likely to make it bigger or better for the carrier.
7. “…and/or replace…” so maybe the site/stuff in it is added to, modified, AND replaced all in one shot…any individual element, or any in combination will do.
8. “…equipment…” which is NOT usually a defined term in the lease, and since this word is in lower case, it can mean anything from the tower, to the antennas, the radio cabinets, the cables, to the utilities and beyond. In other words, the carrier is likely to say that everything is equipment, and you bear the burden to disprove it. Yeah, good luck on that one.
9. “…in order to be in compliance with…” generally to meet the requirements, but not necessary the minimum requirements of something. What something? Keep reading.
10. “…any current or future…” now or in the future.
11. “…federal…” is the federal government, including Congress and all of the known and unknown federal agencies, as well potentially any of the federal military units (Army, Air Force, etc.).
12. “…state…” that big outlined place on the U.S. map where you and several million of your friends live.
13. “…or local…” that smaller outlined place within the bigger outlined place on the U.S. map where you and several hundred thousand of your closest friends live.
14. “…mandated application…” Wow! A mandated application. Doesn’t sound like it even rises to the level of a law or regulation. It’s more like something you might download from the Apple iTunes store or Google Play. Okay, we know that something is mandated, which suggests that its required. But the failure to do something required may not be actionable, or actionable at a particular time. Obviously this term is subject to broad interpretation, and guess who’ll do the interpreting!?
15. “…including but not limited to…” so whatever is mandated is an include item, but not the only item.
16. “ …emergency 911 communication services.” So now we really discover that the bolded title of the section, “Emergency 911 Service” is just a ‘red herring’ element of a much larger scheme to separate a landlord from the use and value of his or her property. Yup, emergency 911 communication service sounds really important, but as you can see, it has very little to do with the core of this lease term.
There you have it. Just one little 58 word sentence, which breaks out to 16 elements, all of which are designed to be a free land grab by the tenant.
Do I fault the wireless companies for trying to pull this little shenanigan?
Of course not.
As wireless companies know, and as you should as well, their true duty is to maximize profits for the shareholders. Their duty to the Landlord is as little as possible, and attempts to reduce that duty by leases and lease amendments are all part of The American Way.
Now you know that the answer to the question in the title of this post depends on whether YOU make it worthless by agreeing to this sucker punch provision.
If you are asked to agree to provisions that you don’t understand, or you don’t think you understand, or even the ones you think you understand but really don’t, you might want talk with an experienced wireless attorney and law firm working for landlords.
If you are looking for a really good law firm that just happens to work for wireless site landlords, I happen to know of one.
Jonathan
Good post.
Thanks for the heads up…
Usually I would not allow the hidden advertisement for an Orgonite web site (embedded in the author’s name link above) to post to this web site, but this gives me a wonderful opportunity to revisit something I posted 2 1/2 years ago (see my April 2011 post: Orgonite: The Cure for Cell Towers!)
Orgonite is a mythical, magical device that not only ‘purifies the atmosphere, detoxifies water, ends drought’, and ‘turns negative energy into positive energy,’ but it also ‘mitigates harmful effects of EMF radiation.’ The best news is that you can make your own Orgonite pucks and protect yourself, your family, your neighbors, and the bum walking down the street for just a few dollars per puck.
Oh, by the way, be careful not to inhale the fumes when you mix the resin to make your own Orgonite pucks. Or maybe…yes…the making of the Orgonite puck cleans up its own fumes! Yeah, that must be right!
Anyway, go do a Google search for this term: orgonite cell tower (or just click on the words…it’s a live link). You’ll find lots of fun and entertaining ways to waste your time, separating you from your money, and convincing rational people that you are not one of them.
By the way, I’ve heard that the best looking and most effective Orgonite pucks contain only the finest natural dilithium crystals. As noted in the leading authoritative article on dilithium crystals, residing on Wikipedia, “When placed in a high-frequency electromagnetic field, magnetic eddies are induced in its structure which keep charged particles away from the crystal lattice.” I assume this is how Orgonite pucks absorb cell tower RF emissions.
Jonathan