Ancient rights - modern problems: mines and minerals registrations

If you asked the average person in the street whether rights dating back to the Lords of the Manor are relevant today, they would probably assume they had gone out with the Ark. Unfortunately, they are back in the news for many landowners and cannot be consigned to the history books quite yet.

The problem

Increasing numbers of landowners, from elderly village homeowners to large housing associations and public sector bodies, have received surprise notifications from the land registry, telling them that someone has applied to enter a unilateral notice on their title to protect manorial rights, usually in relation to mines and minerals. The landowner has to decide whether to object to this notice or allow it to be entered on their registered title without challenge.

The background

Manorial rights date back to a type of land ownership called copyhold which was abolished in 1925. In order to appease the Lords of the Manor, who were most affected by this change, the government at the time allowed them to retain rights to shoot, hunt and fish over land and to have rights to mines and minerals under land. It is these last rights which are being registered in their thousands and causing anxiety to commercial landowners and individual homeowners alike.

Before 13 October 2013, manorial rights (and chancel repair liability, around which there has also been a flurry of activity) were “overriding interests” which bound the owners of land, irrespective of whether they were registered or apparent on site. It is not possible to do any searches in relation to these sorts of rights, other than chancel repair liability.

After 13 October 2013, unless manorial rights are registered, a purchaser of the land for value takes free of them. Those claiming the benefit of the rights, such as the Marquess of Bath and the Church Commissioners, have been applying to register them on as many titles as they can, so that they will sit on the registered title. This then binds the current and any future owner of that land, whether they buy for value or take the land as a gift or through refinancing.

Your rights as landowner

The land registry makes no checks on the enforceability of mines and minerals rights when they receive an application for a unilateral notice. They will simply send notification to the registered owner of the land, to say that a notice will be registered. This often comes completely out of the blue, and landowners are worried that it affects the saleability or value of their land, even though they were unaware of the rights when they acquired it.

This is of particular concern to housing associations and public sector bodies, who own large areas of land which have now been built on. The worry is the possible effect the registration will have on potential purchasers, tenants and mortgagees.

Under land registry rules, the landowner can object to the registration by applying to cancel the unilateral notice. However, this can involve the landowner in a disputes procedure.

Practical advice

So what should you do if you receive a notification of this kind? Firstly, do not ignore it! Whilst there is no time limit for requesting cancellation of a unilateral notice, it is better to deal with the problem whilst it is fresh in everyone’s minds. We suggest following the checklist below.

• Check your deeds to the land – is there already reference to mines and mineral rights being reserved out of the title? This is not uncommon, and the effect of the unilateral notice may not be as great if the existence of similar rights is already clear on your title at the land registry.
• Ask for evidence – there have been cases of unilateral notices being applied for over large tracts of land with only a tenuous link to historic manorial rights. Get evidence on the table to help assess whether a formal challenge is appropriate. Remember that registration of a unilateral notice is not proof that the interest claimed is valid or even that it exists.
• Consider your appetite for a fight – get advice on whether to take these applications through the land registry’s adjudication process. It is a formal legal process that may be daunting to some.
• Consider the practical impact – some Lords of the Manor may own manorial rights, but may only be able actually to work mines and minerals with the landowner’s consent. Do beware, though, as some mines and mineral rights include a “power to win and work” and in some cases rights to “let down the surface”, with or without compensation.
• Consider the use of the land – is there a problem with development, if you need to go down through mineral strata within the land which you now discover are not within your registered title?
• Consider insurance – if you cannot get the notice removed, insurance might be possible, but cost will depend on the insured value and the strength of the mineral owner’s claim.
  

To sum up

This is a dusty, technical area of the law, which many would have thought had little practical importance to modern land ownership. However, it has reared its head in a very commercial way, affecting decisions on development, lending and disposals. The key is to understand the legal basis of the individual claim, and react where necessary. Sadly, these are ancient rights which refuse to be buried and forgotten.