Whilst it is probably true that the most useful thing you could find beneath your fields is oil, there are a number of other minerals which, though not as exciting, are much more commonly encountered and can be just as useful.
What constitutes a mineral (as opposed to just soil) has changed over time, largely reflecting the industrial development of the country. The two most commonly used definitions are that a mineral is a substance of ‘exceptional use, value and character’ and that ‘minerals’ should be defined according to the mining, industrial and landowning vernacular at the time. Examples of minerals tending to be in private ownership include stone, limestone, sand, gravel, shale, clay and ironstone. Silver, gold, oil and other petrochemicals are also minerals of course, but are owned by the Crown. Pity. Coal is the other obvious exception; although ownership was nationalised in the early twentieth century, the coal industry was subsequently re-privatised in the 1990s, with the majority of viable mines being sold to private companies. This means that current ownership of coal deposits is complicated and needs to be researched carefully.
The normal position is that ownership of minerals runs with the surface ownership of the land however, the minerals and rights to work them can be ‘severed’ from the surface land and owned separately. This occurs in two main ways, the first being a sale of the mines and minerals per se, or the reservation of them on a sale of the surface land to a third party. Such reservations are quite common, especially with the larger landed estates where it tends to be standard practice on any sale. Admittedly, if land is sold for housing, the chances of getting permission to work the minerals in the future are slim – any anyway if there were minerals of any value, it is unlikely that houses would ever be constructed over them. However, use of land can change and where minerals are reserved under open land, they are of much more use.
The second type of minerals ownership occurs as part of the manorial rights, owned by a Lordship of a Manor. Less exotic, but more common than it sounds, this is a hangover from the feudal system of land tenure by which the Lord of the Manor owned all of the land and his tenants derived their title from him in copyhold – literally a copy of the Lord’s title with their interest mentioned. Under this system, the Lord’s ownership included the minerals, but he was not allowed to work them without the copyholder’s permission. From 1841 onwards it became possible for copyholders to enfranchise, that is, become the freehold owners of their land and by the Law of Property Act 1922 all remaining copyhold land was enfranchised automatically. On enfranchisements, the situation regarding minerals tended not to be changed, meaning that in former copyhold land, it is common that the minerals remain in the ownership of the Lord of the Manor.
As above, whilst it is rarely a concern if you are buying residential property subject to reserved mines and minerals, the position is different if you are buying open land. There are two risks: first, the obvious one, that the owner might try and dig them up, but secondly, although usual agricultural operations and other works, such as putting in roads, are permitted, anything involving deeper excavations (for example, installing a wind turbine) could cause a technical interference with the ownership of the mines and minerals under the surface. In theory, this could give rise to the minerals owner taking legal proceedings against you for that trespass. For this reason, permission should always be sought from the owner of reserved mines and minerals if you are considering carrying out any work that might affect them – if the owner is unknown (as is quite often the case) consider taking out indemnity insurance.
As ever when buying land, a little research goes a long way. Find out as much as you can about any reserved mines and minerals: what is reserved, to whom and with what ancillary rights? The Land Register is a good starting point and will state on the title to the surface land whether mines and minerals (and any rights) are reserved, however this is not conclusive and often does not state the owner. Pre-registration deeds should therefore also be consulted and are often more useful than the title register. Mines and minerals can also be registered in their own right, but with difficulty (and usually only with a qualified title) due to the problems of proving title and defining precisely what is owned – they are underground, after all. For these reasons, it is vital to carry out full enquiries of the seller before buying.
As a final twist in the tale, on 13 October 2013 minerals owned as manorial rights will cease to lose their overriding status. This means that a buyer of the surface land who is not given notice of the reserved minerals could also get title to the minerals anyway, if that interest is not protected by that date. Whilst this will doubtless usefully clear up a number of redundant ownerships, owners of mineral rights deriving from Lordships of the Manor would be well-advised to have a serious think now about whether they should be getting on with registering them to protect their interests.
About Elizabeth
Despite being one who feels the cold,
Elizabeth braved a move to Northumberland and has worked there as a
solicitor with the firm of Dickinson Dees
LLP, in the Agriculture, Farms and Estates Team, where she started life
as a trainee in 2003. As part of this specialist and nationally
renowned team, she works both for a number of larger estates and trusts
on an ongoing basis and also on one-off matters, covering the range of
rural property law, including; sales and purchases, sporting
rights,rights of way, easements and tenancies, to name a few. Outside
the office, she nearly managed to get sent to the North Pole, loves the
occasional hunt with the CVNNH and continues to try and break the 4-hour
mark for a marathon. She lives with her husband, a terrier and a very
silly basset.
She can be contacted through Dickinson Dees on 0191 279 9000
