(1362) COMM - Article - Manorial Rights-What Lies Beneath

Leading Title Insurance

MANORIAL RIGHTS: WHAT LIES BENEATH? A landowner does not automatically own the entirety of their land, that is to say, everything beneath the surface of the land, because of the existence of manorial rights.

Nor do they necessarily own the rights to carry out certain activities such as fishing or shooting on their land.

If you are a developer, for example, and intend carrying out groundworks such as installing foundations that could impact a mineral layer, and you do not have the subterranean rights, you could face a potential legal claim if you do not have the necessary consent.

is land originally forming part of the landholdings of the Lordship of the Manor and which has not been transferred separately from the Lordship title. Manorial rights formed part of the manorial title and were usually retained by the Lord on disposal of parts of manorial land.

Manorial rights can be a valuable commodity, particularly in the case of landed estates or in areas rich in minerals. It is, therefore, an issue that may require serious consideration. You can forget any gold though: the law has already given the rights to gold and silver (as well as oil, gas and coal) to the Crown.

Typically, this includes hunting rights, and the right to shoot or fish or extract minerals – even the Lord’s right to hold fairs and markets.

Lord of the Manor Manorial rights (along with Lordship of the Manor and manorial land) are a legacy of the feudal system from the days of the Norman Conquest. Manorial land

In the case of land registered at HM Land Registry, these manorial rights were traditionally overriding interests which meant that the rights affected the property on disposal, even if not noted on the registered title.

Significant changes were introduced on 13 October 2013 by virtue of section 117 of the Land Registration Act 2002. Since then, the overriding status of manorial rights no longer exists. Instead, any such manorial right needs to be protected by registration at Land Registry;

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otherwise, the owner of the manorial interests loses those rights to the landowner.

When the rule changes were announced, there was the expected flood of applications by manorial rights owners to register their interests at HM Land Registry (some 90,000 applications were made by the end of 2013) – otherwise, the owners risked losing their rights.

Once registration was effected, the registered surface landowners were then given notice that they did not own the entirety of the land. According to the Ministry of Justice figures, 84,000 manorial rights notices were registered between December 2012 and July 2014.

The new rules mean that so long as the applicant can prove they have title to the rights, a notice of the rights can be entered on the registered title; and can apply to register their rights under a separate title.

“Who has the right to what lies beneath the surface?’’

Readers may recall the genuine concerns reported by many recipients of these notices following the initial surge of applications. For instance, 4,000 residents received notices that a Cheshire businessman, who had bought the title of the Lord of the Manor for 10,350 acres of Anglesey, had asserted his right to royalties from minerals extracted below their homes. He eventually dropped the claim.

at some point, when the land was sold, the mines and minerals (or other rights) were retained with the title so are excluded from the surface owner’s ownership.

However, to be clear, the position now is that buyers of the surface land will take legal title to such excepted or reserved mineral or other manorial rights – unless they have notice of them and the legal owner has registered the rights to protect their interests.

Permission granted The implications of manorial rights, particularly mines and minerals, tend to arise in the case of the owner of ‘open’ land. Routine farming work and other ‘surface’ operations are not an issue, but what if deeper workings and excavations are required? For example, actual mining of minerals, installing foundations for battery storage facilities or wind turbines and archaeological excavations.

The question is, who has the right to what lies beneath the surface, and what are the limits to those rights? If, for example, you’re a property developer and need to excavate your land for a large development, you need to know if you have the right to do so before any works begin.

Unless your registered title specifically states you own the rights, the first step to determining whether there is a separate freehold title to manorial rights is to undertake a Land Registry SIM (index map) search. If the rights to the subterranean land or other manorial rights are registered to someone under a separate title number you can then get hold of a copy of the registered title and identify the registered proprietor.

If the legal owner of manorial rights has not made an application to protect their interests, the purchaser of property and land takes the land including title to the manorial rights if they have received no notice of them.

If you identify a third party is the registered owner of manorial rights you may need to secure their permission. This could require a level of negotiation with specific terms to be agreed before any work starts.

Typically, this could be the rights of access in return for a proportion of the royalties received. If permission is not secured and the activity is carried out, this could lead to a civil claim against you.

It’s not uncommon for a seller or purchaser of land and property to peruse the official copy of the title register and see that the right, for example, to mine minerals or the right to fish and shoot, are reserved and / or excepted to someone else. This reflects the fact that

Likewise, if the owner of the rights themselves seeks to assert those rights by requesting permission to access the land to excavate – they will need the permission of the surface landowner to access the land. Any work they might seek to do in relation to subsurface mines

is limited in law to underground works, so without the surface owner’s consent to enter their land, they will be trespassing.

This could lead to a civil claim for an injunction and / or substantial damages, depending on what (if any) damage to the land has been caused; and the potential profit that could be derived from the mining or other activity.

Both parties, therefore, need to be open to reasonable negotiations to ensure an acceptable outcome for both.

Indemnity insurance against the risk presented by manorial rights is a vital consideration as a landowner.

Think about protecting against the risk of a third party lawfully seeking access to your land to excavate, mine or similar. First Title will take full details and ensure the level of indemnity insurance is effective to protect any risk involved.

The future of manorial rights?

You would not be wrong for viewing manorial rights as somewhat of a Norman relic, and there have been calls for further change. Back in 2015, the Justice Select Committee of MPs called for the Government to review the operation of manorial rights and recommended changes for more efficient operation in future; and examined arguments for and against the abolition of the protection of manorial rights in law. The Government appears to be taking on board criticism of the current system but, as yet, has made no soundings towards abolition.

Manorial rights are likely to remain a necessary consideration for businesses in the property sector for years to come.

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