The ownership of land can differ above and below ground. Owning the surface doesn’t necessarily give you the rights to everything that lies beneath.
When land is sold, the sale does not necessarily include the minerals that are underneath the land. This means that there can be separate owners of the surface and what lies beneath. In addition to this, there is no single definition of “minerals” that can be applied across the board. So, it’s no surprise that disputes occur as to who owns what below ground.
The renewed activity in house-building has highlighted this confusion over ownership and led to some opportunistic claims to mineral rights. Some claimants are suggesting that even the act of digging foundations for a house extension would constitute a trespass into their minerals.
“As land is promoted through the planning system, some owners of mineral rights see the increase in land value that is created by the change in planning status, and try to benefit from this uplift,” explains Stuart Jeffries of Savills Minerals and Waste Management.
However, these claimants often seek a financial settlement without understanding the true strength or weakness of their position regarding mineral ownership.
“And if it’s a relatively modest sum that is being demanded, developers are often tempted to agree a one-off settlement rather than entering into a legal dispute with all the delay and costs involved,” Stuart says.
That’s not to say that this is always the case, there are times when there are commercially viable mineral reserves below ground and the mineral owner should have the opportunity to extract these before any surface development takes place. Or in other situations, mineral owners and surface owners can work together to promote the development of the land and share the uplift in value.
If it sounds somewhat complicated, it’s because it is. There is no all-encompassing definition of mines and minerals, nor a standard interpretation of a reservation clause dealing with them, so much depends on the wording of the original deed when the mines and minerals were first separated from the surface land.
A negotiation today between the surface owner and the mineral owner must consider the position of the original owners at the date of the first reservation, irrespective of how long ago this might have been. If at that time the “minerals” were not thought to have been of any particular use or value, then it is unlikely that they would be included in the original mineral reservation.
“For example, historical evidence of a glass factory on the outskirts of Mansfield in the late 1700s would support the view that the local sand deposits which were used in glass manufacture could be defined as a mineral.
Whereas in other cases, sand and gravel has been deemed not to be a mineral but rather the soil of the district, so digging into it for house foundations was not a trespass, as it wasn’t minerals.”
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