Mines and minerals – are they yours?
05 July 2012
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
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
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
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
- 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.
Cotter is a senior associate in the Energy and natural resources
group at Field Fisher Waterhouse LLP