Land Registry title to property mines and minerals

Depending on the location of the property, it is quite common in parts of England and Wales for a property title to contain a reference to mines and minerals, and for these to be excluded from the surface owner’s ownership in favour of another party. When this appears on a title, it means that during a previous transfer, the owner at the time reserved and kept the title to the minerals and the right to work those in the future.

However, where these rights are reserved, there is not an automatic right to enter, break, or damage the surface of the land to access those minerals and worth the mines. This means that any removal of minerals by the owning party is restricted to works underground.

The position in respect of Registered land

The default position is that mines and minerals are presumed to be included in the title register of land; however, the only way of being certain of their inclusion within a title is if the registered title explicitly 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 had these rights 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, and 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 to 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 of the mines and minerals (“the Beneficiary”) ensures that the Land Registry will notify them when an application for first registration of the land is made. This then affords the Beneficiary the opportunity to make an objection to such an application, so that they can protect their interest by entering a notice in the Land Register. Unless the right is protected by a notice being entered by the pint of first registration, the Beneficiary will lose out, and the land will thereafter be free of the rights to mines and minerals.

Potential Problems

A potential hazard with reservation of mines and minerals is that the owner of the minerals may allege a trespass against the surface owner if the foundations of buildings on the property interfere with the minerals. Further, buyers of land might have some apprehension about minerals being mined in the future, as well as the possibility of subsidence, even if the reservation states that the minerals owner may not enter the land to extract or cause any damage to the surface.

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 an available remedy to the Beneficiary. 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 they will sell their 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.