Guidance

Practice guide 65: registration of mines and minerals

Updated 6 April 2018

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

This guide deals with the registration of mines and minerals under the Land Registration Act 2002. It does not seek to be a general guide to the law concerning mines and minerals.

Section 132(1) of the Land Registration Act 2002 states that ‘mines and minerals’ includes any strata or seam of minerals or substances in or under any land, and powers of working and getting any such minerals or substances. ‘Land’ is defined by that section as including “…(c) mines and minerals, whether or not held with the surface”.

The registration of mines and minerals held apart from the surface is not compulsory (section 4(9) of the Land Registration Act 2002) except where there is a registrable disposition of such mines and minerals (section 27 of the Land Registration Act 2002).

Where the mines and minerals constitute the surface or outcrop, for example, along a cliff face that slopes outwards towards the sea, the usual rules regarding compulsory registration apply to the surface.

It is possible to make a voluntary application to register mines and minerals at any time.

Rights in respect of mines and minerals reserved to the lord on enfranchisement (whether under section 48 of the Copyhold Act 1852, section 23 of the Copyhold Act 1894 or paragraph 5 of Schedule 12 of the Law of Property Act 1922) do not fall within section 1(1)(a) of the Law of Property Act 1925 but rather within section 1(2)(a) of the Law of Property Act 1925. Such rights cannot be registered with their own title under section 3(1)(a) of the Land Registration Act 2002. Where there was a custom of the manor that the lord was entitled to enter the copyhold land of the tenant and take the minerals, it may be possible to register the rights reserved to the lord on enfranchisement under those Acts under section 3(1)(d) of the Land Registration Act 2002, but only when the rights are profits a prendre in gross. See practice guide 16: profits a prendre (taking natural resources from another’s land) for details about registration of a profit a prendre in gross.

Under the general law, as part of the Crown’s prerogative, all mines of gold and silver belong to the Crown other than, exceptionally, where they have been granted to a subject. Petroleum in its natural state is also vested in the Crown. Most interests in coal are vested in the Coal Authority. The Coal Authority may also have title to other mines and minerals in coal mining areas. Registered titles will not therefore include any of these interests.

2. First registration of freehold mines and minerals held apart from the land

2.1 How to apply and retention of documents

An application for first registration must be made in form FR1 and, under rules 25 and 26 of the Land Registration Rules 2003, be accompanied by:

• a plan of the surface under which the mines and minerals lie
• any other sufficient details by plan or otherwise so that the mines and minerals can be identified clearly
• full details of rights incidental to the working of the mines and minerals

In addition, you must lodge:

• documents proving title to the mines and minerals (see Title to mines and minerals
• all necessary land charges searches
• the fee (payable under the current Land Registration Fee Order, see HM Land Registry fees: Registration Services fees) based on either the price paid in a recent transaction or a certificate of the value of the interest being registered
• full details in form DI of any other unregistered interests affecting the mines and minerals as specified in Schedule 1 of the Land Registration Act 2002 (see practice guide 15: overriding interests and their disclosure)
• evidence, if appropriate, that the mines and minerals are currently being worked (which may be helpful in considering the class of title)

If your application is a first registration, original documents are normally required. A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this, see practice guide 1: first registration – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, we only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

However, any original copies of death certificates or grants of probate will continue to be returned.

2.2 Class of title

There are significant problems in establishing a good title to mines and minerals. These are discussed in Title to mines and minerals. As a result, mines and minerals can usually only be registered with a qualified title.

The qualification will be as follows:

“QUALIFICATION: the inclusion of all or any of the mines and minerals and powers of working and getting them in this title does not affect or prejudice the enforcement of any estate right or interest therein existing before [date of first registration].”

3. Title to mines and minerals

The conventional 15-year root of title will rarely be sufficient to allow the grant of an absolute title to mines and minerals for the following reasons. In many cases the difficulty will be in determining whether or not any of the situations described below apply.

3.1 Crown grants

All land in England and Wales is held in tenure from the Crown. Some grants of land from the Crown reserved the mines and minerals and any reservation in favour of the Crown is construed against the grantee.

3.2 Copyhold

Copyhold was a form of tenure affecting large areas of the country that was abolished on 1 January 1926 by the Law of Property Act 1922. Although the position regarding the ownership of mines and minerals under copyhold land was governed by the custom of the manor in which that land was situate, the most common situation was that the property in the minerals was with the lord of the manor but the lord could not work them without the consent of the copyholder. Even where the lord of the manor can work the minerals, once the minerals have been removed the space which the minerals occupied belongs to the copyholder’s successor in title (Eardley v Granville (1876) 3 Ch. D. 826).

On enfranchisement of the copyhold (whether under the Copyhold Acts of 1841, 1852, 1858 or 1894 or under the Law of Property Act 1922) the position of the lord and tenant regarding mines and minerals was generally preserved by way of appropriate reservations implied by the relevant Act. Occasionally however the position regarding mines and minerals was specifically dealt with by the parties on enfranchisement. On enfranchisement at common law the mines and minerals usually passed to the copyholder but might be dealt with otherwise in the deed of enfranchisement. It is not always apparent from deeds of enfranchisement whether the enfranchisement was at common law or under one of the Copyhold Acts. Enfranchisement was the process by which a copyhold tenure was converted into a freehold title.

3.3 Ancient demesne

A manor of ancient demesne was a manor that belonged to the Crown at the time of Edward the Confessor or William I. The position regarding the ownership of mines and minerals in land that was ancient demesne may be unclear, since some tenants in ancient demesne had freehold while others had copyhold.

3.4 Ancient freehold, customary freehold and tenant right

Ancient freehold was land which was not parcel of the manor but held at the will of the lord and which could be conveyed without the need for an admittance. As the freehold was held by the tenant, the mines and minerals were usually vested in them.

In contrast to ancient freehold, which was a sort of free tenure, customary freehold was a form of privileged copyhold. A conveyance of a customary freehold could be made by surrender and admittance, or by an ordinary conveyance followed by an admittance, or by an ordinary conveyance coupled with surrender and admittance. As a form of copyhold, the position regarding mines and minerals is the same as under Copyhold.

Tenant right was a form of tenure predominantly in the counties of Northumberland, Cumberland and Westmorland. While it was arguably neither freehold nor copyhold, it was a customary tenure and the ownership of the mines and minerals may depend on the particular custom affecting the land in question.

3.5 Local law

In some parts of the country questions about the ownership of mines and minerals may depend on ‘local law’, for example, in the Forest of Dean or the High Peak. In the south west (and perhaps elsewhere) questions may arise about conventionary tenements or tin bounding. There may be other examples.

3.6 Inclosures

Where land was the subject to an Inclosure Act or Award the ownership of the mines and minerals may be dealt with by that Act or Award. The inclosure may have taken place as long ago as the 1700s and may not be referred to in later deeds, but will still determine questions of ownership.

3.7 Coal Authority

In certain areas of the country coal and other mines and minerals may be vested in the Coal Authority. Where appropriate HM Land Registry will normally make an entry excluding from the title any mines and minerals which vested in the Coal Commission pursuant to the Coal Act 1938. If unusually you do not want such an entry made you will be expected to make enquiries to the Coal Authority and lodge any supporting material to justify your request for the omission of such entry (see Notices).

3.8 Adverse possession

It is possible that adverse possession of a seam or area of minerals may have been established through underground working.

4. Inclusion of mines and minerals

The mines and minerals are rebuttably presumed to be included in the registered title of surface land; this reflects the common law position with regard to mines and minerals where the surface lands are unregistered.

However, paragraph 2 of Schedule 8 of the Land Registration Act 2002 provides that no indemnity is payable in respect of mines and minerals unless there is a specific note in the register that title to them is included.

Such a note can be entered as a result of a:

• specific application on first registration
• subsequent application in form AP1

The evidence required in support will be the same as that required for the grant of an absolute title on first registration of the mines and minerals (see Title to mines and minerals and must be sufficient to satisfy the registrar that those mines and minerals are included in the registered estate (rule 71 of the Land Registration Rules 2003). Where the evidence of title to the mines and minerals is not sufficient for an absolute title, a separate qualified title may be created sections 9(4) and 10(5) of the Land Registration Act 2002.

Note: See How to apply and retention of documents regarding retention of documents sent to us.

The form of the note in the register extending indemnity to mines and minerals will usually be:

“NOTE:- For the purposes of paragraph 2 of Schedule 8 to the Land Registration Act 2002 [details of mines and minerals] are included in this title.”

Where a note cannot be made in the register that the title to the registered estate includes mines and minerals, but the description of the registered estate makes reference to mines and minerals, an entry on the following lines may appear:

“NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number].”

Such an entry may be used, for example, where a transfer of part of a registered estate is expressed to include the mines and minerals, but the transferor’s property register does not include a note for the purposes of paragraph 2 of Schedule 8 to the Land Registration Act 2002. The registrar will want to ensure that any reference to mines and minerals in the description in the transferee’s property register is not a note for the purposes of paragraph 2 of Schedule 8 to the Land Registration Act 2002.

5. Leases of mines and minerals

5.1 First registration

5.1.1 How to apply

An application for first registration must be made in form FR1 and, under rules 25 and 26 of the Land Registration Rules 2003, be accompanied by:

• a plan of the surface under which the mines and minerals lie
• any other sufficient details by plan or otherwise so that the mines and minerals can be identified clearly
• full details of rights incidental to the working of the mines and minerals

In addition, you must lodge:

• documents proving title to the mines and minerals
• all necessary land charges searches
• the fee (payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees) based on either the price paid in a recent transaction or a certificate of value of the interest being registered
• full details in form DI of any other unregistered interests affecting the mines and minerals as specified in Schedule 1 of the Land Registration Act 2002 (see practice guide 15: overriding interests and their disclosure)

Note: See How to apply and retention of documents regarding retention of documents sent to us.

5.1.2 Class of title

Where the lessor’s title cannot be satisfactorily established, a good leasehold title will be registered. Evidence of the lessor’s title will be required if an absolute title is to be registered (see Title to mines and minerals).

5.2 Leases of mines and minerals out of registered land

Where a lease of mines and minerals is a grant out of an absolute title to mines and minerals, or there is a note on the lessor’s title regarding the inclusion of those mines and minerals, an absolute title can be registered. Where there is no such note and the lessor is registered with an absolute title, then an absolute title to the leasehold estate can still be registered but the following entry will be made following the description of the registered estate:

“NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals under the land. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number of the lessor’s title].”

In those cases where the lessor is registered with a qualified or possessory title, a good leasehold title will be registered.

6. Transfers out of registered land

Where a transfer of mines and minerals is made out of a registered title to mines and minerals, or which contains a note regarding the inclusion of those mines and minerals, the new title will be registered with the same class of title as the existing class of title. Where there is no such note, the new title will be registered with the same class of title as the existing class of title but the following entry will be made following the description of the registered estate:

“NOTE: The description of the registered estate is an entry made under rule 5(a) of the Land Registration Rules 2003 and is not a note to which paragraph 2 of Schedule 8 to the Land Registration Act 2002 refers that the registered estate includes the mines or minerals under the land. The mines and minerals under the land are only included in the registration to the extent that they were included in [title number of the transferor’s title].”

Where a registered title contains a note that expressly includes mines and minerals or is silent as to the inclusion or exclusion of mines and minerals, any transfer of or out of that title that excepts the mines and minerals will have the effect of severing the mines and minerals from the surface land.

In these circumstances:

• if a transfer of whole is lodged a new title will be created for the mines and minerals retained by the transferor
• if a transfer of part is lodged the mines and minerals will be retained by the transferor in the registered title

In certain cases, such as developing estates where there is likely to be a number of transfers of part, it may be appropriate for the mines and minerals for the whole estate to be registered separately under a new title number.

7. Notices

We may give notice of the application to the owner of a surface title and may also give notice to other persons, for example, in appropriate circumstances, the Crown or the Coal Authority (rule 30(a) of the Land Registration Rules 2003). In the unusual case where absolute title is being considered, and the application is in a coal-mining area and the applicant seeks omission of the exclusion entry referred to in Coal Authority, one line of enquiry the applicant will be expected to make in advance of the application is to establish with the Coal Authority whether it has any claim to the mines and minerals sought to be registered. Details of coal-mining areas can be found on the Coal Authority’s website.

8. Indemnity

Paragraph 2 of Schedule 8 of the Land Registration Act 2002 provides that no indemnity is payable in respect of mines and minerals unless there is a specific note in the register that title to them is included.

9. Overriding interests

Registered land is subject to any subsisting overriding interests (sections 11, 12, 29, 30 and Schedules 1 and 3 of the Land Registration Act 2002). These include:

• an interest in any coal or coal mine, the rights attached to any such interest and the rights of any person under sections 38, 49 or 51 of the Coal Industry Act 1994
• in the case of land to which title was registered before 1898, rights to mines and minerals (and incidental rights) created before 1898
• in the case of land to which title was registered between 1898 and 1925 inclusive, rights to mines and minerals (and incidental rights) created before the date of registration of the title

10. Profits a prendre

The grant of a right to enter on to land and extract minerals may be a profit a prendre. Such a right may be registered if it is in gross (see practice guide 16: profits a prendre (taking natural resources from another’s land)) and must be registered where the grant is out of registered land, except where the right so granted is capable of registration under the Commons Registration Act 1965.

11. Examples where absolute title to mines and minerals may be appropriate

Because of the difficulties in proving the negatives necessary to establish title (see Title to mines and minerals these examples are mainly based on situations where there is clear evidence that the land was formerly copyhold.

11.1

The Crown was the lord of a manor (not a manor of ancient demesne: see Ancient demesne) on 1 January 1926 when the Law of Property Act 1922 came into force. The Crown had not at that time granted any leases of mines and minerals or otherwise dealt with the mines and minerals. The compensation agreement, which was entered into between the Crown and a former copyholder, dealt not only with the extinguishment of the manorial incidents saved by Part V of the Law of Property Act 1922 affecting the land of the former copyholder but also with the extinguishment of “the rights of the lord in or to any mines and minerals in or under the said land and the sporting and other rights affecting the same preserved by the Twelfth Schedule to that Act”. The applicant is able to prove that the copyholder and their predecessors and successors in title have not dealt with the mines and minerals, or any interest they had in them, separately from the land. No minerals under the land have been worked.

In this situation it is clear that the successor to the copyholder has title to the mines and minerals under the land in question and an absolute title is appropriate.

11.2

Under the terms of an inclosure award the land is allotted to one person as copyhold and the mines and minerals under the land are awarded to the lord of the manor. On enfranchisement of the copyhold land under the Copyhold Act 1894, the mines and minerals were not specifically dealt with, therefore the ownership of the lord of the manor was not affected. The applicant is able to prove that the lord and the lord’s predecessors and successors in title have not dealt with the mines and minerals, or any interest they had in them, separately from the land. No third party has been in adverse possession of the mines and minerals.

In this situation it is clear that the successor to the lord of the manor has title to the mines and minerals under the land in question and an absolute title is appropriate.

11.3

Following enfranchisement of copyhold land under the Law of Property Act 1922 the lord of the manor and former copyholder entered into a compensation agreement in the form of a deed in which all mines and minerals in and under the land were reserved to the lord of the manor. Prior to this neither the lord of the manor nor the copyholder had dealt with any interest which the lord of the manor had in the mines and minerals. There is nothing to suggest that the mines and minerals were reserved on the original grant from the Crown.

In this situation it is clear that the successor to the lord of the manor has title to the mines and minerals under the land in question and an absolute title is appropriate.

11.4

A landowner who can prove:

• title directly from a crown grant which included mines and minerals
• that the land has never been the subject of a copyhold grant
• that the mines and minerals have never, prior to the date of the application for first registration, been disposed of can expect an absolute title to be approved

12. Things to remember

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.