Reasons to choose Wilson Browne
It may be assumed that ownership of property includes all the mines and minerals that lie beneath it. However, in many parts of England and Wales, it is not unusual for a property’s title to exclude mines and minerals from the surface owner’s ownership. These mineral rights are stated to be “excepted” and/or “reserved” to a third party, entitling the owner to exploit the land for the minerals it harbours. This severed ownership is often the case in Northamptonshire as a result of the area’s iron ore reserves.
Where this exception applies any mines and minerals which lay beneath the property are not included in the legal title and, as such, are excluded from ownership.
How is this identified?
The exclusion of mines and minerals may be shown on the Title Register in different ways. There may simply be a note on the Register to say that the mines and minerals are excluded or there may be a separate freehold title to the mines and minerals.
A Land Registry “SIM” search will identify whether there is a separate freehold title, and potentially identify the registered proprietor of the subterranean property.
Why are they excluded?
The reason for this severance of ownership is that a previous owner, when the property was previously sold or transferred, wished to retain the title to the minerals or reserved the right to work them in the future, and as such excluded them from the transfer of the land.
Historically there was a form of ownership called copyhold. A copyholder held his rights in land from the lord of the manor who retained various manorial rights which he could exercise over the land.
Some copyhold land was converted into freehold land in the nineteenth and early twentieth century and all remaining copyhold land was automatically enfranchised on 1 January 1926.
When the land became freehold, the lord of the manor may have retained such rights.
Manorial rights were previously an ‘overriding interest’ in land, meaning they affected the property, even if not shown on the title register. However, in accordance with the Land Registration Act 2002, as of 13 October 2013, the ‘overriding status’ of these rights were removed. Consequently, owners of Manorial Rights now need to have registered their interest against the title of a property, usually be way of a Unilateral Notice (or by caution against first registration of unregistered land). However, owners of Manorial Rights can not register an interest against any property sold after 13 October 2013.
Potential risks where the exclusion applies
The owner of the mines and minerals may allege trespass if the foundations of the property interfere with the minerals. The risk of trespass by a residential owner is minimal unless you plan on developing on your land.
If you do intend to develop on your property, you will need to consider the presence of such mines and minerals as any earthmoving or foundation construction will likely involve going through the mineral strata. Additionally, loans for such development may be more difficult to obtain as lenders will consider the possible risks resulting from such exclusion.
If the owner of the mines and minerals does allege trespass, they are able to pursue any one of the following remedies:
- Damages where trespass has been committed
- An injunction could be granted to prevent trespass into the mineral strata
- A compensation payment.
Exercising the Right
Most mining and mineral rights are now redundant for two reasons. Firstly, because the mines and minerals are often no longer accessible as a result of property development. The owner of the manorial rights cannot access the minerals from the surface unless clearly stated on the title register. Instead, any access to the mines and minerals by the party retaining ownership is restricted underground, forbidding any entry, breakage or damage to the surface of the land.
There are, however, rare situations in which a minerals’ owner may be able to exercise these rights despite property development on the surface. For example, if they own the neighbouring land or were given permission by a neighbour to access the mines without disturbing your surface. If any damage was caused to the surface of your property, they would very likely be liable to pay compensation.
Secondly, manorial rights are unlikely to be exercised because of the numerous statutory requirements which surround the right of exploration and extraction activities. Taking Iron as an example (given Northampton’s iron ore), the minerals’ owner must obtain planning permission, comply with a number of environmental consents and put into place numerous safety systems.
It is important to obtain as much information regarding the excepted rights as possible. This may include:
- Conducting a Search of the Index Map at the Land Registry to determine whether the minerals have been registered under a separate title.
- Making enquiries with the seller to determine whether the rights have ever been exercised.
- Authorising a search from the relevant authority.
- When you purchase a property your conveyancer will report to you on the title and in some cases may take out an indemnity insurance policy which would cover any future financial losses.
- Some rights may refer to a precise depth which you may be able to avoid if you do plan on developing your property, circumventing any potential claims of trespass.
In the event that such information is not readily accessible, or you intend on developing the land extensively (making a claim of trespass inevitable) you may either:
- Negotiate purchasing the mines and minerals from their owner or obtain rights to place the foundations in the mineral strata. However, you should be aware that if the owner objects such request, it is unlikely you will be able to obtain an indemnity policy as most insurers do not permit contact with the minerals’ owner. Additionally, the owner of the mines and minerals may not be identifiable if the title entry is historic.
- Consider obtaining indemnity insurance, protecting you against damages for trespass and for detrimental enforcements of the rights. Title indemnity insurers will look at various factors when deciding whether to offer cover, such as the availability of planning permission, the worth of the minerals and whether the manorial title has been registered separately. For this reason it is important to obtain as much detail of the minerals reservation from Land Registry as possible, as the precise wording may increase your chances, or reduce the costs, of obtaining insurance.