~By Lizzie Dobson~
You may be forgiven for thinking that manorial rights were left behind at the turn of the 19th century but many homes in Swansea and the surrounding areas remain subject to such rights. It is important to understand these rights and how they affect your property.
In recent years, historic manorial rights owners such as the Crown and Church Commissioners, submitted vast amounts of applications to register their titles to mines & minerals and other rights. The influx of applications arose because after 12 October 2013, anyone purchasing a registered title would not buy subject to these types of rights, unless the rights were noted on the title register.
Manorial rights include: mines & minerals exceptions and the right to hunt, shoot and fish.
If you have became aware of such rights relating to your property or you are considering buying a property which is subject to manorial rights; it is important that you undertake a Search of the Index Map at the Land Registry to find out if the rights have also been registered in a separate title.
If rights are excepted on the title register to a property, the owner of such rights may apply to register the rights on a separate title at any time (providing they can prove good title).
The main risk with mines & minerals rights is that the owner may have a claim for trespass if they can shows that the mines & minerals have been interfered with in some way, for example through excavation for foundations. It is important to find out as much information about the rights as possible – many rights refer to an exact depth and so if you plan of developing your land and are concerned about ‘trespassing’ onto mines & minerals, you can prevent this by ensuring you do not excavate as far as the depth referred to. It would be prudent to obtain professional advice in relation to this.
The risk of trespass in a residential owner context is minimal. Unless you are planning to build on your land, you won’t need to worry about the issue of trespass.
Another risk to be aware of is the enforcement of the rights by the owner. Normally, owners of such rights are not allowed to disturb the surface of the land in order to excavate mines & minerals. This means that in most cases, it is very unlikely that the owner of such rights would be able to enforce their ability to mine the land. Of course, there are rare situations in which they would be able to – if they owned neighbouring land or were given permission by a neighbour to mine underneath the land and then crossed into your land without disturbing the surface.
The main risk, therefore, remains trespass. For residential property owners, who are considering purchasing a property subject to such rights, despite the risk of trespass being minimal, we would recommend asking the seller to obtain an Indemnity Policy from a specialist legal insurer to protect you. The policy will protect against damages for trespass and for detrimental enforcements of the rights.
We also recommend that you find out as much as possible about the rights, so that you know exactly when enforceable and so on. You must ensure you comply with the terms of any policy, if you don’t, you won’t be protected and will be unable to claim under it.
If you plan on developing your land extensively you will face greater challenges; you are likely to trespass by installing foundations or carrying out any earthmoving works. If you are a plot developer; you may have difficulty obtaining a loan over the land as many lenders will see the exception of rights as a risk to their investment. You might be tempted to contact the owner of the rights in relation to selling their rights to you but beware that if they are not willing to, you will be unable to obtain an indemnity policy protecting you from exercise of the rights as insurers forbid approaching the owner of the rights.
In Swansea and the surrounding areas, the mineral most likely to be found will be coal. It is important to note that the Coal Authority insists on inspection of the Coal Holdings register if you are investigating mines & minerals thoroughly. You will need to instruct a surveyor to analyse the results listed on the holdings register. You will need the Coal Authority’s consent for any movement or removal of coal.
The cautionary tale of Countess of Lonsdale V Tesco 2010 highlights the risks to developers. Tesco acquired land to develop at a purchase price of £18million. The Countess of Lonsdale then invoked her right to mines & minerals in order to stop the development. The seller (a local council) then backtracked on it’s decision to sell the land. Although the case was settled through private agreement by the parties involved, it clearly shows the affect that mines & minerals rights may have on land.
It is inadvisable for plot developers to approach the owners of rights as if they refuse or demand a ransom amount, you will be unable to obtain an indemnity policy.
To summarise, residential buyers should always:
- Investigate the title in order to ascertain if there is an exception of rights
- Undertake a Land Registry SIM search to find out if the rights are registered under a separate title
- Obtain any documentation relating to the rights (historic Conveyances etc)
- Make enquiries with seller to find out if the rights have ever been exercised
- Ask the seller to obtain an indemnity policy (at their cost) to protect you against claims for damages/exercise of rights
Plot developers should also undertake the same enquiries as above.
In all cases you should seek specific legal advice based on the particular facts of your case.