Understanding Excluded Mines and Minerals

Following on from my article looking at how Franchises and Manorial Rights can impact land development https://www.dhirubhai.net/pulse/unearthing-past-how-franchises-manorial-rights-affect-michael-morris-ue8qe/?trackingId=TA8iwbMDRWeEPyl9T%2BFG7Q%3D%3D in this article, Donald Millar and I explore the impact that the exclusion of mines and minerals can have for land owners seeking to develop.

While it's generally assumed that property ownership extends to everything beneath the surface, this isn't always the case. In England and Wales, it's not uncommon for a property's title to exclude mines and minerals from the ownership granted to the surface owner. These excluded rights are typically denoted as "excepted" or "reserved" and entitle a third party to exploit the land for the minerals it may contain.

Impact of Excluded Mines and Minerals

Where this exception applies, the legal title doesn't include any mines or minerals found underground, effectively excluding them from ownership.

Identifying Exclusions

The exclusion of mines and minerals can be shown on the Title Register in various ways. There might be a simple note on the Register stating that mines and minerals are excluded, or there could be a separate freehold title specifically for the mines and minerals. A Land Registry "SIM" search can identify whether such a separate title exists and potentially reveal the proprietor of this subterranean property.

Reasons for Exclusion

This severance of ownership typically stems from a previous landowner's desire to retain the title to the minerals, or the right to exploit them in the future, when selling or transferring the land. Consequently, these rights were excluded from the transfer of the surface ownership.

Potential Risks When Exclusions Apply

• Trespass: The owner of the mines and minerals might claim trespass if the property's foundations interfere with the mineral strata. The risk for residential property owners is minimal unless extensive development is planned.
• Development Considerations: When developing the property, the presence of such mines and minerals requires careful consideration. Any earthmoving or foundation construction will likely involve going through the mineral strata, potentially leading to complications. Additionally, securing loans for such developments might be more difficult due to the potential risks associated with the exclusion.
• Remedies for Alleged Trespass: If the owner of the mines and minerals alleges trespass, they can pursue various remedies, including damages for any trespass that has occurred, an injunction to prevent future trespass into the mineral strata and / or compensation.

Recommended Actions

It's crucial to gather as much information as possible regarding any excluded rights. This may involve:

• Conducting a Land Registry Index Map search to determine if the minerals have been registered under a separate title.
• Making enquiries with the seller to ascertain if the rights have ever been exercised.
• Seek legal advice: Get in touch Michael Morris & Donald Millar can help you interpret the impact of these rights on your development plans.
• Insurance: Depending on the nature of the rights, indemnity insurance might be an option to protect yourself financially if a third party tries to exercise them. However, this needs careful evaluation.

When purchasing a property, your conveyancer will report on the title and may recommend indemnity insurance to protect against potential future issues related to the excluded mineral rights.