Many people automatically assume that owning a property also means owning all of the mines and minerals that may lie beneath their property. But this may not be the case. In England and Wales it is quite common for a property’s title to specifically exclude 'the mines and minerals' meaning they in fact belong to someone else.

Such mines and mineral rights usually show on the title register as “excepted” and/or “reserved” to a third party. This limitation on a title does not necessarily mean that the third party then has the right to enter, break or damage the surface of your property if they wish to obtain the mines and minerals. Should a third party wish to remove any minerals they must do so in such manner that does not effect peaceful enjoyment of the property. In the event that damage is caused to the property/surface they are likely to be liable to pay compensation.

In some circumstances there may simply be a note on the title register to show that the mines and minerals are not included. In such an instance, procurement of a Land Registry “SIM” search (Search of the Index Map) is recommended. This would identify whether the mines and minerals exist under a separate freehold title.

Why would mines and minerals be excluded?

The reason for this is that at some point when the property was previously sold or transferred the previous owner for whatever reason wished to retain the title to these minerals or they wished to reserve the right to access/work them in the future (or perhaps, secure rights to royalties).

Will a mines/minerals exception have an impact on possible future development?

If development of the property is to go ahead it is likely that the mines and minerals may be disturbed. Therefore, it would be necessary to seek approval of the owner of the mines and minerals. Otherwise, relief could subsequently be sought by the beneficiaries such as:

• A compensation payment
• Damages in situations where trespass has been committed
• Injunction

In order to avoid such contingency it is very important to find out as much information as possible about the excepted rights. This can be achieved by requesting an appropriate mining search (e.g. coal, salt, iron) from the relevant authority. Alternatively it is recommended to:

• Contact the owner of the mines and minerals and see whether you can purchase them or
• Consider putting in place an indemnity insurance policy which would indemnify the insured party for losses which may be suffered as a result of any claim brought by the owner of the mines and minerals.

In every property purchase it is recommended that experienced, qualified legal advice be sought from the outset.