Developers may start to come across sites where the mines and minerals are not only excluded but registered under a separate title to another owner.
If a title to a property contains a reservation of mines and minerals, a search of the index map should be carried out to find out if the mines and minerals have been carved out into another title.
Property owners across the country have received a B25 notice from the Land Registry notifying them that another party has applied to register the mines and minerals under their property.
Ownership of mines and minerals separate from the surface land may come about in a variety of ways, many of them under ancient law. Rights to mines and minerals often derive from rights held by the lord of the manor or manorial rights - former copyhold land. The law is changing in relation to how manorial rights should be protected in relation to land.
At present, a buyer of a property subject to manorial rights will be bound by them even though they are not mentioned on the title register at the Land Registry. From 13 October 2013 a buyer will only be bound by them if they are noted on the title register.
As a consequence, those with a manorial right to mines and minerals have to decide how to protect them. In some cases they are able to prove ownership of the mines and minerals and apply for their own title to them rather than just note them on the surface title.
In the case of proof of ownership, the application is notified in a B25 notice. The Land Registry says that there is no time limit on an application for first registration of mines and minerals. We are aware of applications by the Church Commissioners for England and by the Duchy of Lancaster.
At present B25 notices are most likely to be sent in relation to land that used to be copyhold. This is land that used to form part of a manor and when it was converted to freehold, rights were kept for the lord of the manor including mines and minerals. Some titles to former copyhold land have an entry to make that clear but many do not.
Should a developer be concerned if the mines and minerals are removed from the title?
The title to many properties in England and Wales states that mines and minerals are not included. A view is generally taken about the likelihood of them being mined.
Another risk to consider is a claim by a mineral owner of trespass for interference with the minerals through excavations for foundations. A preliminary question is whether what might be in the ground is actually a mineral at all. In most cases it is not possible to find out who owns the mines and minerals and some developers take out insurance against the risk.
The risk of a claim for trespass may be greater if it is found that the mines and minerals have recently been excluded from the title or noted on the title by the minerals owner. The exclusion may specify that the mines and minerals are at a certain depth so this may not be an issue.