Homeowner Unearried by Historical Mining Clause

A homeowner who recently purchased the freehold of their house has discovered a clause in the property documents that appears to reserve mining rights beneath their home and absolves the rights holder of liability for subsidence. The clause is a point of concern for the homeowner, who bought the property as a forever home in a former mining area.

Experts say such clauses are not uncommon in England, particularly in areas with a history of mining. These provisions often stem from historical arrangements where landowners sold surface rights while retaining mineral rights, a practice known as severance. This separation of ownership can persist through subsequent property sales, meaning that even with freehold ownership, the minerals beneath the land may belong to another entity.

The specific wording in the homeowner's deeds states that a company reserves the right to extract minerals underneath the property "without making or leaving support whether vertical or lateral for the surface of the land" and without being liable for compensation for any resulting injury or subsidence, beyond statutory obligations.

According to James Naylor, a partner at Naylor Solicitors, these clauses are a reflection of past practices rather than an indication of current or planned mining activity. He explained that while owning land traditionally extends rights both upwards and downwards, exceptions exist, and minerals can be severed from surface ownership. The Coal Mining Subsidence Act 1991 is mentioned as an example of legislation that provides for compensation in specific cases of coal mining subsidence.

Natalie Bradley, partner and head of residential conveyancing at Stephensons, noted that such clauses typically pertain to commercially valuable minerals like sand, gravel, clay, or stone, rather than coal. She emphasized that the practical risk to a property depends on various factors, including whether mining is still active locally, who owns the mineral rights, and the likelihood of future extraction. Any such extraction would require planning permission and regulatory consent, and active mineral workings directly beneath residential properties are rare.

Both experts advised that the mere presence of the clause does not automatically mean subsidence has occurred or is likely. Conveyancers usually conduct mining or ground stability searches during the property purchase process to identify known mining activity and potential risks. Mortgage lenders are also aware of these issues.

For the homeowner in question, if the initial property searches revealed no concerns and there is no evidence of current mining activity, the immediate risk is likely low. However, for complete reassurance, a conveyancing solicitor can review the title documents and historical searches. In some situations, indemnity insurance may be an option to provide financial protection against potential future claims related to these mineral rights.