Mines and minerals – what goes on beneath the surface…

Background

It is not unusual to see an exception for mines and minerals on a title register for a property. This exception means that any mines and minerals lying underneath the property are not included in the registered title and, as such, the property.

If you are told that this is the case for your property, your solicitors should undertake a Land Registry SIM search to find out if these mines and minerals are registered under a separate title. The search result will show if there is a separate freehold title showing the proprietor of the subterranean property.

Why aren’t the mines mine?

When the property was transferred the owner at the time decided to retain the title to the minerals rather than transferring them with the land. They would have done this to retain any value in the coal or other minerals present.

What does this mean for my property?

An exception for mines and minerals often means that the owner of them has a right to “work them” (excavate etc). However they have no right to enter onto the surface of your land, so would be restricted to underground searching. It is also likely that you would be given compensation in the event of damage being caused to your property by the working of these mines and minerals. If this was a serious concern to you prior to purchase, it would be prudent to consider putting indemnity insurance in place to cover the risk. These exceptions on titles are of less practical concern nowadays because mining may no longer possible due to planning or other restrictions.

What if I want to develop my property?

If you plan to develop the property at any stage, you would need to consider the presence of such mines and minerals, as it is likely that any earthmoving works and the construction of foundations or supports will involve going through or removing mineral strata. Loans may be more difficult to obtain for development: many lenders will consider that the exception of mines and minerals from title poses a risk.

If you were to carry out a development without the consent or approval of the owner of the mines and minerals, they could pursue any of the following remedies:

• damages may need to be paid where trespass has been committed;
• an injunction could be granted to prevent trespass into the mineral strata; and/or
• a compensation payment.

What should I do to resolve this issue?

Find out as much about the excepted rights as possible. It is advisable to authorise a search from the relevant authority (for example a Mining Report from The Coal Authority in an area where coal is present) to obtain further information. The rights may refer to an exact depth and if your development is not deep enough, you can prevent any trespass by ensuring that you do not dig down to the depth of the mines and minerals.

If no information can be obtained or you are planning on developing the land extensively (so trespass is inevitable as you will be installing foundations or involving earthmoving works), you should either:

• negotiate the purchase of the mines and minerals with the owner of the mines and minerals or obtain the rights to place the foundations of any buildings in the mineral strata. Be aware however that if you contact the owner and they are not willing to sell their rights, you are unlikely to be able to obtain an indemnity policy; or
• consider placing indemnity insurance, as part of risk management for the proposed development, which would indemnify the beneficiary for losses suffered as a result of a claim by the owner of the mines and minerals.

Fiona Dreghorn, Associate, Fladgate LLP (fdreghorn@fladgate.com)