Mines and Minerals: The Key Land Law Issues For Residential Developers

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Q.What are mines and minerals and how could they affect a development site?

A. Any residential developer will realise the importance of obtaining good and marketable title to a development site so that they are ultimately able to pass that title on to home buyers and — in particular — their lenders.

There could, however, be issues in proving good and marketable title to land if a third party can claim ownership of the subsurface or subsoil of a development site — sometimes referred to as "mines and minerals".

Q. Doesn't a developer or landowner automatically own the land beneath the surface of his land?

A. Although a landowner may generally assume that he owns the surface of his land as well as the ground beneath it and the air space above it, there are exceptions to this.

And it is quite possible for the ownership of the subsoil to land to be separated from the ownership of the surface and be owned by a third party.

There was much publicity around mines and minerals towards the end of 2013 when the Church Commissioners and the Crown were registering their manorial rights to mines and minerals (although this was in a slightly different context).

Q. What are the implications of a third party owning the subsoil?

A. The implication of a third party owning the subsoil to your land is that works done to it which interfere with the materials below the surface, such as constructing the foundations of a building, may amount to trespass, and the owner of the subsoil may, therefore, lodge a claim against you for damages or seek an injunction to prevent further interference.

Q. How can a developer or landowner determine if the subsoil of his land is owned by a third party?

A. You can find out who owns the subsoil to land by carrying out a search of the Index Map at the Land Registry (if the land is registered) or by examining the title deeds (if the land is unregistered).

Your legal advisers would normally do this for you as part of the due diligence carried out before you buy the land.

Q. What can a developer or landowner do if the subsoil of his land belongs to a third party?

A. There are two things you can do if you discover that the subsoil of your land, or land you are about to buy, belongs to a third party:

1. You could seek to obtain insurance against any claims that the owner of the subsoil may bring against you.

2. You could also approach the owner of the subsoil in order to procure a release of such rights. However, bear in mind that if you do this and the owner is not prepared to release their rights, or you cannot reach a deal with them, you may not be able to obtain mining indemnity insurance because insurers don't usually allow contact with the owner.

There are various other factors that could affect any indemnity insurance available and/or the level of any premium payable. However each case would need to be looked at on it's own facts.

If you would like to discuss this issue, or have any queries on mines and minerals generally, please do not hesitate to contact me or one of the residential development lawyers here at IBB.

Please contact IBB's residential development solicitors on on 01895 207803, or email us at housebuilders@ibblaw.co.uk or visit https://www.ibblaw.co.uk/service/residential-development.

For further information please visit the respective pages:

Partnership and Collaboration Agreements

Property Development Finance

Sustainable Development Legal Experts

The Property Development Process (House Building)

Social Housing Solicitors

Assets of Community Value and Commercial Property Development

Third Party Rights over Land

Press Coverage:

Serdar Mehmet, Solicitor in the Residential Team, considers whether ownership over what is above your land can guarantee ownership of what is beneath it. Published in Spear's Magazine.