Investigation of title - Mines and minerals reservations

Learning Outcomes

This article outlines the investigation of mines and minerals reservations in land titles, including:

• Locations and wording of reservations in registered and unregistered titles, and the distinction between an exception and a reservation
• Legal effect of severing subsurface ownership and ancillary rights to work minerals, including impacts on surface support
• Practical risks for occupation, lending, and development, including subsidence, access rights, and insurability
• Appropriate further searches in coal and other mining areas (CON29M, SIM, and mining-specific searches) and related checks near waterways
• Reporting to buyers and lenders, risk management (developer due diligence, structural advice), and solutions such as indemnity insurance or investigation of separate mineral titles

SQE1 Syllabus

For SQE1, you are required to understand the investigation of mines and minerals reservations in land titles, with a focus on the following syllabus points:

• identifying mines and minerals reservations in registered and unregistered titles
• understanding the legal and practical effect of such reservations, including ancillary rights and support
• distinguishing exceptions from reservations and their consequences for title and risk
• advising on the risks for buyers, lenders, and future development (subsidence, access, insurance)
• recommending appropriate searches (e.g. CON29M, SIM and other mining searches; relevant waterway searches)
• reporting findings and risks to clients and lenders and proposing proportionate solutions (including indemnity insurance)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In which section of the official copies would you expect to find a mines and minerals reservation in registered land?
2. What is the main risk to a buyer if the owner of reserved minerals has ancillary rights of access?
3. Which search is essential in former coal mining areas when a mines and minerals reservation is present?
4. True or false? The existence of a mines and minerals reservation always prevents surface development.

Introduction

When investigating title to land, you must check for any reservations or exceptions of mines and minerals. In English law, “land” includes mines and minerals beneath the surface. However, ownership of mines and minerals may be severed from the surface by exception or reservation in a deed, or may be separately vested by statute (for example, unworked coal is typically vested in the Coal Authority). These provisions can separate ownership of the surface from subsurface minerals and may include rights for the mineral owner to access or work them. Such arrangements can affect value, use, development, and marketability of the property. For SQE1, be able to identify these provisions, understand their effect (including rights of support), and advise on practical steps.

Key Term: Official Copies
The certified Land Registry record of the title, including the Property Register, Proprietorship Register, and Charges Register, showing ownership and rights affecting the land.

Key Term: Mines and Minerals Reservation
A provision in a title or deed excepting ownership of subsurface minerals from the transfer, or reserving them to the seller on a disposal, often with rights to access or extract them.

Key Term: Exception vs Reservation
An exception keeps something out of the land conveyed (e.g. existing mines and minerals remain with the grantor), while a reservation creates a new right in the grantor (e.g. the grantor reserves a right to enter and work minerals). In practice both appear together, and both can bind successors if properly created and protected.

Key Term: Ancillary Rights
Additional rights granted to the mineral owner—such as rights of access, to sink shafts, to lay plant or to remove minerals—and sometimes provisions about support or compensation.

Key Term: Subsidence
The downward movement of the ground, often caused by mining activity, which can damage buildings and infrastructure.

Identifying Mines and Minerals Reservations

Registered Land

In registered land, exceptions and reservations of mines and minerals are usually set out in, or referred to from, the Property Register. The entry commonly reads along the lines of “Mines and minerals are excepted” or “Excepted and reserved are all mines and minerals under the land together with ancillary rights of working,” sometimes with a reference to the deed in which the wording appears. You may also find:

• notes that mines and minerals are held under a separate freehold title (with its own title number)
• a notice or reference in the Charges Register where rights in the nature of a profit à prendre or other third‑party rights have been protected

Always obtain copies of any “filed” deeds or documents referred to in the registers for the precise wording.

Key Term: Profit à Prendre (minerals)
A right to take something from another’s land (e.g. minerals). Where granted by deed, a mineral profit can be a legal interest, typically protected on the register in registered land.

Unregistered Land

For unregistered land, examine the epitome of title closely. Reservations and exceptions are often in the parcels clause of a conveyance or under “Exceptions and Reservations.” They commonly refer to “all mines and minerals under the land,” and may add ancillary rights, “liberty to let down the surface,” or compensation/no‑claim terms. Confirm that the root of title (at least 15 years old and dealing with the whole legal and equitable estate) is good, and ensure all subsequent conveyances in the chain are checked.

Key Term: Epitome of Title
A chronological bundle of title deeds and documents, starting with a good root of title, used to prove ownership in unregistered land.

Key Term: Root of Title
The document (usually a conveyance or mortgage) at least 15 years old, dealing with the whole legal and equitable interest, from which title investigation begins in unregistered land.

What to Look For

• The precise wording of the exception/reservation:
  • does it “except” existing mines and minerals out of the land transferred?
  • does it “reserve” rights to enter, work and remove minerals (ancillary rights)?
  • does it include a “liberty to let down the surface” (i.e. waive support)?
  • does it contain compensation/no‑claim wording, or restrict claims for damage?
• Any reference to a filed deed or earlier conveyance (obtain and review it).
• Whether the reservation is general or limited to specific minerals (e.g. coal, ironstone).
• Whether the register notes a separate minerals title or a notice of a profit à prendre.
• Whether the property is in a known mining area (coal, tin, clay, limestone, brine/salt).

Key Term: Right of Support
The surface owner normally has a natural right of support from the subjacent strata. Deeds may exclude or modify this, for example by reserving a liberty to let down the surface or by including “no‑claim” clauses.

Legal Effect and Practical Risks

A mines and minerals exception or reservation means the surface owner does not own the minerals beneath the land. The owner of the minerals may have rights to access, work and remove them, depending on the wording. Where a reservation includes ancillary rights, the mineral owner may be permitted to enter onto the land, sink shafts, lay apparatus, or otherwise disturb the surface to extract minerals. The consequences are both legal and practical:

• The surface title is severed from the minerals. The minerals may be subject to a separate registered title or be vested by statute (e.g. the Coal Authority for unworked coal).
• The rights reserved may operate like a legal profit à prendre or other legal interest and, if properly created and protected, bind successors in title.
• If “liberty to let down the surface” or similar wording appears, the surface owner’s natural right of support may be excluded, shifting the risk of subsidence damage to the surface owner.
• Reservations without ancillary rights usually mean the mineral owner cannot lawfully disturb the surface from above—but minerals might be worked laterally from adjoining land, still presenting subsidence risk.

Practical risks include:

• constraints on redevelopment, especially if deep substructures, basements, piled structures, or significant excavation are planned
• subsidence risk (past or future working), potentially affecting insurability and valuation
• disruption from lawful entry/working by the mineral owner if rights allow surface access
• difficulty obtaining a mortgage or a requirement for additional due diligence/insurance
• reduced marketability or development value

Even where active mining is unlikely (for instance in built‑up areas), the existence of a legal right must be treated as real risk unless shown otherwise.

Key Term: CON29M
A standard pre‑contract search for coal mining activity, revealing past, present, and future mining, mine entries/shafts, and subsidence claims.

Worked Example 1.1

You are acting for a buyer of a house in a former mining area. The Property Register states: "Excepted and reserved are all mines and minerals under the land together with full ancillary rights of working." The client plans to build an extension.

What are the risks and what should you do?

Answer:
The mineral owner may have the right to access the land and extract minerals, which could disrupt the surface and any extension. There is also a risk of subsidence. Advise the client of these risks, recommend a coal mining search (CON29M), review any filed deed for the scope of ancillary rights and support, inform the lender, and consider specialist ground stability advice and indemnity insurance.

Searches and Further Investigation

When a mines and minerals exception/reservation is present, further investigation is essential. The aim is to clarify ownership of minerals, the scope of any ancillary rights, the likelihood and impact of mining activity, and any liabilities that might arise.

Key Term: Index Map Search (SIM)
A Land Registry search to check if mines and minerals (or other estates) are registered under a separate title, and to reveal pending applications and cautions.

Key Term: Indemnity Insurance
An insurance policy protecting against financial loss from a specific defect or risk, such as the exercise of mineral rights, enforced access, or damage from subsidence.

Recommended steps:

• Review the title thoroughly for the wording and extent of the exception/reservation, including any “let down the surface” or “no‑claim” provisions.
• Obtain and review any filed deeds or referenced documents for precise terms and plans.
• In coalfield or known mining areas, order a CON29M search to assess past/future coal mining and mine entries and to check for prior subsidence claims.
• Consider a Search of the Index Map (SIM) to identify any separate minerals title and to obtain official copies of that title for the identity of the mineral owner and detailed terms.
• Where relevant, commission additional mining/geotechnical searches:
  • tin in parts of Cornwall, Devon and Somerset
  • clay in Cornwall, Devon and Dorset
  • limestone in parts of the West Midlands (Dudley, Sandwell, Walsall, Wolverhampton, Telford and Wrekin)
  • other known local mining (e.g. historic brine/salt extraction in parts of Cheshire)
• Consider a site‑specific risk report and, where development is proposed, instruct a structural engineer or geotechnical consultant to advise on ground stability and substructure design.
• Where the property is close to canals or rivers (areas sometimes affected by former mining and subsidence at banks/towpaths), consider a waterway search.

Key Term: Canal and River Trust/Environment Agency/Natural Resources Wales search
A search to ascertain any liabilities for repair, rebuilding, or maintenance of waterways, banks, and towpaths, rights affecting the land, and information on past flooding. Useful where mining‑related ground movement could affect, or be affected by, nearby watercourses.

Practical guidance:

• Report clearly to the buyer and lender on the legal rights identified, the practical risks (including any waiver of support), and the search results. Lenders typically require a good and marketable title; reservations with ancillary rights may necessitate insurance.
• If indemnity insurance is being contemplated, avoid contacting a known mineral owner or any party that could claim under the reservation without insurer consent, as contact can prejudice cover.
• Where minerals are separately registered, review that title for any further rights, limitations, or extinguishment of access. Release of rights is rare but may be negotiable in limited cases; most commonly, risk is managed with insurance and technical solutions.

Worked Example 1.2

A client is buying farmland. The epitome of title includes a 1930 conveyance reserving "all mines and minerals under the land with full rights of access and working" and “liberty to let down the surface.” There is no evidence of recent mining. The client wants to build a barn.

What advice should you give?

Answer:
The mineral owner could access the land and extract minerals and, because support is expressly waived, the client may have no claim for subsidence damage. Even if mining is unlikely, the legal risk remains. Advise the client and lender, obtain relevant mining searches, take structural/ground stability advice, and consider indemnity insurance to cover loss of value and damage from the exercise of rights.

Worked Example 1.3

Official copies for a registered freehold show: “Mines and minerals are excepted. NOTE: The mines and minerals are held under title number MM123456.” Your client plans a basement.

What should you do?

Answer:
Apply for official copies of the minerals title (SIM if the title number were not known). Review whether the minerals title includes ancillary rights over the surface land and any support/compensation terms. Order relevant mining searches. Report to client and lender on risks to the basement works, seek geotechnical advice, and consider indemnity insurance. Do not contact the minerals proprietor before speaking to insurers.

Exam Warning

If the reservation includes ancillary rights or an express liberty to let down the surface, do not assume the risk is theoretical. Even if mining is unlikely, the legal right exists, support may have been waived, and this must be reported to the client and lender. Failure to do so could result in negligence.

Revision Tip

• In former coal mining areas, a CON29M search is essential whenever a mines and minerals reservation is present.
• Always check for separate mineral titles with a SIM search if the reservation is significant.
• Note whether support is preserved or expressly waived; that distinction often changes the risk profile and the viability of claims.

Additional Practical Considerations

• Development feasibility:
  • Even without ancillary rights, deep excavations or piles may intersect worked ground. A ground investigation can inform design and cost.
  • Planning and environmental approvals are required for any extraction, which can reduce the likelihood of activity, but do not erase the legal risk.
• Insurance scope:
  • Policies may cover loss of market value, subsidence damage, court injunction costs, and adverse costs if rights are asserted.
  • Typical conditions include no prior awareness beyond disclosed risks, no approach to right‑holders, and no structural changes commenced before inception (unless agreed).
• Lender expectations:
  • UK Finance Handbook‑style requirements mean the conveyancer must disclose material reservations and confirm the title remains good and marketable or propose risk mitigation.
  • Some lenders will require an indemnity policy as a condition of drawdown where ancillary access or support waivers exist.

Key Point Checklist

This article has covered the following key knowledge points:

• Mines and minerals reservations separate ownership of subsurface minerals from the surface and may be excepted or reserved in deeds.
• In registered land, look in the Property Register (and any filed deeds); in unregistered land, examine the parcels and “Exceptions and Reservations” in the root and subsequent conveyances.
• Ancillary rights may allow the mineral owner to access and disturb the surface; support can be waived by “liberty to let down the surface” or no‑claim clauses.
• Risks include subsidence, development constraints, enforceable access, insurance/mortgage availability issues, and reduced value.
• Essential searches include CON29M (coal mining) and an Index Map Search (SIM) to identify separate mineral titles; consider other mineral searches and waterway searches where relevant.
• Indemnity insurance is often used to protect against loss from mineral rights being exercised or subsidence, subject to underwriting conditions.
• Always advise clients and lenders on the legal wording, practical implications, and risk management, including technical investigations and insurance.

Key Terms and Concepts

• Official Copies
• Epitome of Title
• Root of Title
• Mines and Minerals Reservation
• Exception vs Reservation
• Ancillary Rights
• Right of Support
• Profit à Prendre (minerals)
• Subsidence
• CON29M
• Index Map Search (SIM)
• Canal and River Trust/Environment Agency/Natural Resources Wales search
• Indemnity Insurance