Specialist Topics
20.1 Introduction
This chapter describes the Keeper’s approach to the specialities which attend the registration of mineral interests in the Land Register. One of the Keeper’s primary objectives in land registration is to confer good title upon an applicant for registration, and it follows from this that a decision to exclude indemnity is never taken lightly. Minerals present a particular challenge to the objective of granting good title. The nature of many mineral titles and the complexity of mineral law can raise questions over quality of title. This makes it difficult or impossible to quantify the risk of quite large claims upon the Keeper’s indemnity in the way that is usually possible with title to other types of interest in land.
As a general rule a conveyance of land will, in the absence of an express provision to the contrary, carry any minerals under the surface. Minerals are, however, one of a small class of rights which are capable of constituting a separate tenement in land. (The legal expression "separate tenement" refers to any heritable property which is owned separately from the solum of the ground.) Consequently, it is possible to sever the mineral interest from the interest in land. An interest in mines and minerals transferred as a separate tenement for valuable consideration in an operational area will therefore require registration to establish a real right.
Except where indicated otherwise, the term ‘minerals’ as used here does not include coal or other minerals such as gold, silver or petroleum normally excluded from private mineral ownership by virtue of statute or the historic rights of the Crown. Registration officers should therefore omit from the title sheet any specific reference in a deed to any of the aforementioned minerals vested in a public body. Coal presents something of a distinct problem and the requirements for registration officers are discussed in this chapter.
Title to minerals can be reflected in the Land Register in various ways. These will now be looked at in turn.
20.3 Title silent as to minerals
A conveyance by feu writ or disposition where there is no express mention of minerals will carry the minerals provided the minerals are still in the title. This is because ownership of land is presumed to be a coelo ad centrum (from the heavens to the centre of the earth). In practice it is often difficult to discover where the title to minerals lies. It has been common for centuries, especially in feus, for the granter of a deed to reserve the minerals and the right to work them. Very often a mineral reservation is included in a deed even where the granter has no title to the minerals, the minerals having previously been reserved further back in the feudal chain. Similarly minerals could be lost by dint of a competing title allied to possession. Because of the difficulty in establishing where title to minerals lies, where the title deeds are silent on the subject of minerals the title sheet will also be silent.
20.3.1 Statutory exclusion of Indemnity
Where the title sheet is silent as regards minerals, the Keeper offers no guarantee that the minerals are included. A registered title which does not specify but which is habile to include the minerals (i.e. is silent as to minerals) is subject to a statutory exclusion of indemnity in terms of section 12(3)(f) of the 1979 Act, In effect it provides that a claimant has no entitlement to indemnity in respect of loss arising in respect of an interest in mines and minerals where that interest is not disclosed in the title sheet. If the surface proprietor does not possess the minerals, the possibility exists that a proprietor on a competing title which included the minerals could possess them, quite possibly without the knowledge of the surface proprietor, since minerals by their nature are usually unseen and incapable of possession in the way that surface land can be possessed. It follows that the value of a registered title habile to include minerals can only be realised through possession. The Keeper’s requirements by way of evidence of possession in the context of mineral ownership are dealt with in the following paragraph.
20.4 Application for inclusion of minerals in the title sheet
20.4.1 Evidence the Keeper will require
An application may be received for registration of title to minerals alone. Alternatively a deed submitted as part of an application for the surface land may contain an express inclusion of minerals. In both cases the Keeper will require to examine a progress of deeds that demonstrate a good prescriptive title to the minerals. In addition the Keeper will require further evidence of possession of the mineral interest for the prescriptive period of 10 years. Should either form of evidence not be forthcoming the Keeper will exclude indemnity.
20.4.2 Evidence of legal title
In the event that the applicant is unable to supply the Keeper with a sufficient progress of legal title but the applicant still wants the mineral interest reflected in the title sheet, and the applicant’s request is not contrary to the Keeper’s a non domino policy (as set out in Dispositions a non domino) then indemnity will be excluded in the following form or some variant of it:
Possession in the context of minerals usually means working the minerals or leasing them to a third party. Alternatively, the fact that a party has interdicted someone else from working the minerals may be seen as possession. Another form of evidence, rare though it may be, which will satisfy the Keeper is a court declarator of mineral ownership. Exceptionally, if the Keeper is satisfied that other forms of documentary evidence point towards demonstrable working of the minerals then a view may be taken that the possession element has been satisfied and no exclusion of indemnity note will be necessary. No evidence of possession need be produced to the Keeper when the legal title to minerals has been acquired by exercise of compulsory purchase powers or the title stems directly from the Crown. In these cases the Keeper will grant a fully indemnified title, except where the circumstances outlined in Compulsory Acquisition apply.
Experience demonstrates that the majority of applications for registration of mineral interests are unable to be supported by evidence of prescriptive or any other possession, and lack any other special quality recognised by the Keeper as justifying him in granting a fully indemnified title. In these cases exclusion of indemnity is appropriate even when a good prescriptive progress of title exists. The indemnity exclusion note in respect of the lack of possession should read as follows:
Registration officers should note that this exclusion note will require to remain on the title sheet until such time as evidence of the registered proprietor’s prescriptive possession can be produced to the Keeper.
20.5 Removal of mineral reservation clause
Not unnaturally, an applicant may not be satisfied with a land certificate bearing an exclusion of indemnity even if the exclusion only affects minerals. Very often a proprietor of surface land will have no interest in working the minerals but has acquired them merely in order to negate the effects of a possibly draconian mineral reservation clause in his title. Invariably this is the reason why the proprietor of a private dwellinghouse or the developer of a piece of land goes to the trouble of acquiring the minerals. Here, the Keeper may be able to help the applicant for registration achieve his real objective by agreeing to treat the conveyance of the mineral interest as a dealing affecting the surface land, the terms of which will allow the Keeper to remove the mineral reservation clause from the burdens section and the mineral exclusion note from the property section. The result will be a title to surface lands silent as to minerals, and thus habile to include them, albeit subject to the statutory exclusion of indemnity already referred to. Where the conveyance of minerals is given effect to in this way, it can of course be held and assigned as an unregistered title in fortification of the proprietor’s right.
The above course of action will only be possible if the following conditions apply:
On some occasions, however, a deed submitted in support of an application may contain an express inclusion of minerals qualified by a phrase such as ‘so far as vested in us’ or ‘so far as we have right thereto’. In this situation the registration officer may omit the express inclusion of minerals from the title sheet without reference to a senior team leader.
Where minerals have been severed from the surface lands, whether by reservation or express grant, and the current registered proprietor of the surface lands acquires the minerals conterminous with the extent of his surface lands, he may seek to consolidate the two fees. This is sometimes resorted to by builders and developers as a means of getting rid of conditions which hamper the development of the surface land. Where the minerals were reserved in the original feu of the lands, their current position can be unclear. The consequences of this uncertainty are explained in the following paragraphs.
If the disposition of the superiority is drawn in the true feudal fashion, that is, it conveys the lands without stating that it is the superiority that is being conveyed, and the indication that it is superiority is gleaned from the fact that the rents and feuduties are assigned and the feu rights are excepted from warrandice, then that disposition can be held to have conveyed the minerals. This is because it is a disposition of the granter’s whole right in the subjects under exception of the feu rights granted by him. As the minerals were reserved to the superior in the feu deeds, and it is only the rights granted in the feus which are excepted, then the disposition carries the minerals.
Conversely, if the minerals are excepted in the feu deed, and the subsequent disposition of the superiority states in gremio that it is a disposition of the superiority of the subjects in the feu deed, then, as the minerals were excepted from the feu deed, the inference is that they are excepted from the disposition of superiority. In other words, if the disposition of superiority actually says in gremio that it is a disposition of superiority, the minerals must be expressly conveyed if they are to be carried by the disposition.
There is, however, a school of thought that maintains that if the disposition of superiority contains some such phrase as ‘together with my whole right title and interest in and to . . .’ then this is sufficient to carry the minerals even without a specific reference to them. In such cases, when a builder who has acquired both the property and superiority comes to sell individual house plots, the Keeper may experience difficulties in deciding what to do about minerals in the title sheets.
The consequences of the above three paragraphs can be summed up as follows:
Because of these doubts and difficulties, in any case where the documents and evidence submitted reveal that the minerals were reserved in a feu and the superiority has subsequently come into the possession of the proprietor of the dominium utile, the question of whether the minerals should be shown as reserved or not must be referred to a senior team leader.
20.7 Compulsory acquisition of land
In addition to what was stated in Evidence of possession a conveyance in the form set out in Schedule A or Schedule B to the Land Clauses Consolidation (Scotland) Act 1845 does not carry minerals unless they are expressly included. This is true also of any of the deeds which may be used as an alternative to a schedule conveyance in a compulsory acquisition, namely a notarial instrument, notice of title or general vesting declaration.
A reservation of minerals is an exception from the subjects in the title sheet rather than a burden on them. However, the terms of a minerals reservation clause may not only except the minerals but also create burdens on the minerals title which are rights in favour of the owners of the surface subjects. For example, restrictions on how the minerals are worked, compensation for damage to the surface, obligations of support etc. are rights which pertain to the owner of the surface land. Conversely, the minerals reservation clause may also create burdens on the surface subjects which are rights in favour of the mineral owner: for example, rights to sink shafts, erect pit head gear, etc.. For practical purposes therefore, only a brief reference to the mineral reservation is made in the property section and the full text of the mineral reservation clause is set out in the burdens section. The mineral reservation is entered in the property section by means of a note along the lines of the following:
The note is adapted as necessary to cater for circumstances of the kind narrated in the following paragraphs.
If the documents and evidence reveal that there is more than one mineral reservation (for example, the over-superior and the immediate superior may both have reserved the minerals in the respective feus), then both reservations are inserted in the title sheet and the note is adapted to show both deeds containing the reservations.
Where the mineral reservation applies only to part of the subjects in the title sheet, that part is separately referenced on the title plan and the note is adapted accordingly. For example:
Occasionally a mineral reservation relates only to certain specified minerals, not to all minerals under the surface. In such a case the note will refer only to those specified minerals. For example:
There may be cases where the minerals are excepted but the deed does not narrate any conditions under which they are held. Here all the Keeper can do is show that the minerals are excepted. In this case a note is inserted that states simply ‘The minerals are excepted’.
Updated August 2003