13 February 2018 #Real Estate
In parts of England and Wales it is quite common for the title of a property to contain a reference to the mines and minerals being excluded from the surface owner’s ownership and excepted and or reserved to another party, although it may not be shown who owns them. This means that when the land was transferred, in the past, the owner at the time kept the title to the minerals or reserved the right to work these in the future. Some titles may not have such an exclusion shown, as this may have been omitted during the course of the change ownership over many years.
Where the mines and minerals are excepted from the ownership, the owner of the rights to mines and minerals does not necessarily have the right to enter, break or damage the surface of the land, in order to obtain the mines and minerals unless it is clearly stated on the title register of the property. This means that any removal of minerals by the party retaining ownership is restricted to works underground and this does not include a right to enter on the surface of the property.
The position in respect of Registered land
Mines and minerals are presumed to be included in the title register of land, although the only way of being certain that mines and minerals are included within a title is if the registered title specifically states that they are included.
Prior to 13 October 2013, parties with the benefit of certain” Manorial Rights” including rights to mines and minerals which were not registered at the Land Registry were automatically protected as “Overriding Interests” (meaning interests in registered land which are not noted on the title to the property, but which remain binding on any purchasers who acquire an interest in the land).
Following the Land Registration Act 2002 becoming law after 12 October 2013, until there is a disposition (including a transfer) of the land for value which is registrable, a notice of a right for mines and minerals may still be entered against the registered land. However, once a transfer or other disposition is registered without a notice having been entered, the land will thereafter be free of the interest.
The position in respect of Unregistered land after 13 October 2013
After 12 October 2013 and until the land is registered at the Land Registry, a caution against first registration may still be lodged against the unregistered land.
By lodging a caution, the party with the benefit with the mines and minerals (“the Beneficiary”) ensures that the Land Registry will notify the Beneficiary when an application for first registration of the land is made, allowing the opportunity for an objection to be made to such an application and protect the Beneficiary’s interest by entering a notice in the Land Register. Unless the right is protected by a notice being entered on first registration, the land will thereafter be free of the rights to mines and minerals.
A potential hazard with reservation of mines and minerals is that the owner of the minerals may allege a trespass if the foundations of buildings on the property interfere with the minerals. Buyers of land might have some apprehension about minerals being mined in the future as well as possible subsidence, even if the reservation states that the minerals owner may not enter the land to extract or cause any damage to the surface of the ground.
Mines and Minerals indemnity insurance is usually available where the carrying out of development on a site is affected by a mines and minerals exception. In the event of damage to the mines and minerals an injunction may be available. Alternatively, substantial damages may be payable or the owner of the mineral title could seek a payment of compensation.
It is not generally advisable to contact the owner of the mines and minerals to ask if he will sell his rights or to obtain permission to sink the foundations of any new buildings into the mineral strata, as insurers of mining indemnity insurance do not permit contacting the owner.