Mines and minerals – are they yours?
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There have recently been reports in the press of landowners who, completely out of the blue, receive a letter from Land Registry saying that someone is claiming title to the mines and minerals under their land. How can this be?
There is a general legal presumption that "mines quarries and minerals in their original position are part and parcel of the land" and that as a result "the owner of the surface land is entitled prima facie to everything beneath or within it, down to the centre of the earth".
However, it is becoming increasingly apparent that this general presumption of ownership of everything above and below the surface land is being challenged whilst historic landowners go through a process of registering title to interests that have never been registered – including separate title to mines and minerals held apart from the ownership of the surface land.
Under the Land Registration Act 2002, there is a deadline of 12 October 2013 by which certain categories of "overriding interest" need to be registered so that they do not lose their overriding status. Examples include historic manorial rights to hunt, shoot or fish, as well as rights in respect of the repair of a church chancel.
As a result of this deadline, a number of historic landowners (such as the Church Commissioners and Lords of the Manor) are undertaking extensive audit processes, with the assistance of surveyors, agents and solicitors, in order to ascertain what rights they are entitled to register.
As we have recently found for a client of the firm, this audit process is not only uncovering unregistered overriding interests that will be caught by the 2013 deadline. It is also uncovering evidence that title to mines and minerals has been severed from the ownership of the surface land – without the knowledge of the surface landowner - as the title to mines and minerals was severed from the surface some decades or even centuries earlier. There is no way that these ancient rights could have been discovered by the surface landowner when he bought (as he thought) the whole of the land.
As confirmed by the Land Registry, separate title to mines and minerals can be voluntarily registered at any time. Unless the surface landowner can provide some form of evidence that the title to the mines and minerals has in some way been passed to them, it appears very difficult for a surface landowner to effectively object to the application to register the separate tile to the mines and minerals.
Title to mines and minerals can be severed from the title to the surface in a number of ways (which are largely historical), for example:
- By Crown Grant (all mines of gold and silver belong to the Crown, as does petroleum in its natural state; all unworked coal vests in the Coal Authority).
- Former copyhold or manorial land (copyhold land ownership was abolished in 1925). In the conversion of the copyhold land to freehold land, ownership or rights to the mines and minerals was often reserved to the lord of the manor and that reservation of ownership in many instances survives today.
- Inclosure Awards or Acts – where land was the subject of an Inclosure Act or Award, the ownership of the mines and minerals may be dealt with by the Act or Award separate from the surface land ownership.
This list is far from exhaustive but hopefully shows that title to mines and minerals is frequently historical, regardless of whether there are in actual fact valuable minerals below the surface.
The concern for landowners who suddenly find that they do not own everything beneath the surface is that the owner of the mines and minerals is potentially in a position to lodge a claim for trespass if works are carried out below the surface. This could even be as little as laying services or constructing the foundations of a building. However, the owner of the mines and minerals must be able to establish that they have suffered some loss.
While the Land Registry may view the application to register a title to mines and minerals on the strict assessment of evidence of title, the practical impact is potentially quite significant for many surface landowners where valuable mines and minerals are close to the surface of the land and could be disturbed by routine works at the property.
Insurance is certainly an option for protecting against this risk, not only in terms of disturbing mines and minerals below the surface, but for also protecting the surface landowner against subsidence damage in the event that the mines and minerals are ever worked.
If you do receive a notice from the Land Registry informing you that an application has been made to register title to mines and minerals below the surface of your land, you must act promptly. You will only have 15 working days from the date of the Land Registry's letter to lodge an objection and within that time you will need to seek advice and conduct a full review of your property's title deeds to ascertain the basis for the application.
If you would like advice or further information on this issue, please get in touch.
Rebecca Cotter is a senior associate in the Energy and natural resources group at Field Fisher Waterhouse LLP