Mineral Titles

General

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 requires registration to establish a real right; section 3(5) of the 2012 Act states that a separate tenement constitutes a plot of land for the purposes of that Act and, in terms of section 3(1) must have its own title sheet. Consequently a title that transmits both a plot of land and minerals will result in the creation of two separate title sheets. In such instances, a single application form is sufficient as the Keeper will create a second title sheet and notify the applicant of the title number allocated to it.

A lease of minerals will also have its own title sheet, in accordance with the Keeper's policy in relation to leases. Registration of a tenant's right to minerals will also invoke the registration of the underlying plot title, if not already registered, in accordance with the requirements of section 24 of the Act. In this instance, the plot that will be registered is the tenement of minerals - see Automatic Plot Registration under Leases.

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 guidance is provided below, there is also specific guidance relating to minerals under Coltness Estate - see the section at the foot of this page.

Creation of Mineral Title Sheet - Intake Process

This guidance relates to the creation of a second title sheet when that requirement has been identified. It is thought unlikely that this will be spotted as part of the initial intake process. Once completed, the two title sheets and associated mapping information will be available via email notifications to the relevant parties. (There is no registration fee for the creation of the second title sheet). To create the second application, the intake officer should follow the guidance below - this example is based on the first title sheet (referred to as the principal application) being the area of ground.

The application type should be the same as the principal application and will be created including the normal information, subject to the following:

the registration date should be the same as the principal application
the additional information field should make clear what the interest is - e.g. "minerals"
no additional fee is payable (the splitting of the title is an administrative process) - see Dummy Cheque/Waived Fee Process
the movement note should include reference to travelling with [application number for the principal application].

An archive information sheet should be included with the new application saying that the original documents are available with the principal application.

Categorisation

The applications should be categorised as Category 4. Once the applications are confirmed in LRS they should be released as normal to the next LRS location.

Title to Minerals

Validity of application

The application must comply with the usual requirements for a valid application in terms of sections 23, 25 or 27 of the 2012 Act. If an existing registered interest is being transferred, section 26 applies.

Title silent as to minerals

A conveyance by 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). However, in practice, it is often difficult to discover where title to minerals lies. It has been common for centuries, especially in feu deeds, for the granter 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.

Minerals included as a pertinent to plot of land

Where minerals are merely included as a pertinent to an area of land being transferred (i.e. together with the minerals), rather than being conveyed as a separate tenement, the title sheet will remain silent. Where the clause continues to the effect that coal and mines of coal are vested in the Coal Authority then a note in following terms should be added to the property section:

Note: Coal and mines of coal are excepted from the subjects in this title.

Application for Registration of Minerals

Surface land and minerals both owned by same party

If the applicant is disponed both the surface land and the minerals then a separate title sheet will be created for both the surface land and the minerals, unless it is indicated as part of the application that absorption has operated (see below).

Minerals title owned separately from surface title

A separate title sheet will be created for the mineral interest.

Requirement to include reference to title number for title sheet of separate tenement

In terms of section 6(1)(f) of the 2012 Act, where there is for the plot of land being registered (in terms of the act, plot of land includes an interest capable of being held as a separate tenement i.e. a mineral title) another title sheet for a separate tenement (i.e. the surface title), then the Keeper must enter the title number for that title sheet in the property section of the title sheet for the plot of land (mineral title sheet), e.g.:

SCHEDULE OF SEPARATE TENEMENTS

Entry No.	Type of separate tenement	Title No
1	Plot of land	LAN9876

Absorption

If the application is for both the surface land and the minerals, previously held on separate titles, or for one of those interests and the applicant is already owner of the other interest, and the applicant indicates that they consider absorption applies to merge the two plots of land, then a single title sheet should be created - as if the title were silent with regard to the minerals. The mineral reservation clause should be omitted from the burdens section entry and there will consequently be no mineral reservation note in 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 aforementioned limitation on warranty granted.

The above course of action will only be possible if the following conditions apply:

The extent of the area covered by the minerals title and the surface land are co-extensive;

No third party rights exist in the minerals. If the mineral reservation clause creates or appears to create rights in favour of third parties - for example, the right to dig tunnels in pursuance of mineral extraction in adjoining lands - the mineral reservation clause and associated condition should not be removed. Where any doubt exists as to whether third party rights may subsist the matter should be referred to a senior caseworker.

Statutory Exclusion of Warranty

A title sheet relating to minerals is subject to the statutory exclusion of warranty in terms of section 73(2)(f) of the 2012 Act, which applies with the effect that the Keeper does not warrant that an applicant, by registration, has acquired a right to minerals. The Keeper will only grant more extensive warranty in terms of section 75(1)(a) of the 2012 Act if provided with appropriate evidence of actual title and possession in fortification of that title and if requested to so. The nature of the evidence the Keeper will require is dealt with below.

A title sheet that is silent as regards minerals, and accordingly can be considered as habile in its terms to include the minerals, is subject to the restriction in section 73(2)(f).

Extended Warranty in Terms of Section 75(1)(a)

See also the general guidance page Warranty for more information on this subject.

Evidence the Keeper will require

If the applicant is seeking extended warranty in relation to a minerals title, and the documents submitted in support of the application are initially insufficient, then a requisition should be raised with the submitting agent to provide the opportunity to submit further evidence within 42 days.

Evidence of legal title

The applicant must supply the Keeper with a progress of deeds that demonstrate good prescriptive legal title to the minerals. If evidence is provided to support obtaining extended warranty and the Keeper considers it is defective and fails to prove title, the Keeper would not give extended warranty and the exclusion under section 73(2)(f) would still apply.

Evidence of possession

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.

No evidence of possession need be produced to the Keeper when the legal title to minerals stems directly from the Crown, or has been acquired by exercise of compulsory purchase powers. It should be noted however that a conveyance in terms of 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 - see also guidance for National Roads Directorate.

Style of extended warranty note

If satisfied with the evidence provided in relation to title and possession, the Keeper will add a note to the property section extending the warranty in the following style:

Note: Warranty is extended in terms of Section 75(1) of the Land Registration etc (Scotland) Act 2012 in respect that the applicant has by registration acquired a right to mines or minerals specified in the title sheet.

Where any applications to extend warranty are received as described above, these should be referred to a senior adviser for consideration.

Guidance on Mineral Interests in Coal, the Coltness Estate and the National Roads Directorate

If minerals are a speciality then coal is a speciality within a speciality. Similarly, minerals under the Coltness Estate and applications invoking the mining code present something of a distinct problem and detailed guidance is provided in the following sections:

Coal

After 1 July 1942, when coal and allied minerals vested in the Coal Commission (the predecessor of the National Coal Board et al) under the Coal Act 1938, conveyancers were able to proceed on the basis that, whatever other minerals might pass with the titles to the land, coal was virtually always excluded from a title by virtue of statute. That was the case even in face of the terms of a pre-Coal Act title which included coal either specifically or implicitly. As regards a registered title, the interest in coal of British Coal and its predecessors was (is) an overriding interest even if the terms of the title derived from pre-Coal Act conveyancing and purported to include coal. That straightforward scenario has been changed by the Coal Industry Act 1994 (the 1994 Act) under which coal will progressively return to private ownership.

The entire interest of the British Coal Corporation in unworked coal and coal mines vested in the Coal Authority on the restructuring date of 31 October 1994. Section 7(3) of the 1994 Act operates to vest the Coal Authority in the Corporation’s interests in unworked coal and coal mines, ‘without further assurance’.

The progressive return of coal to private ownership carries implications for land registration. The most obvious result will be registration in the Land Register, for the first time, of unworked coal as a separate interest in land, and of long leases of coal. That is because the purchaser of a coal interest from the Coal Authority will require to register title in order to complete a real right; a lessee under a long lease will be under the same compulsion and this will also result in the automatic registration of the surface plot of land. A re-acquisition of the coal interest by the Authority will also induce registration.

This creates potential problems with existing registered titles which purport to be to the whole minerals, and with titles which specifically include the whole minerals along with the surface land but do not exclude coal from those minerals. As time goes by, the traditional assumption that whoever owns the coal it is not the private surface owner will become increasingly untenable. It will become progressively more difficult for an inquirer to learn whether the reason why coal is included in the property description in a title sheet is that the terms of the title date from pre-nationalisation days, or because title to coal has been acquired from the Coal Authority. In the former event, the title insofar as it relates to coal is (and will remain) ineffective to the extent that the 1994 Act provides that no one shall be able to acquire an interest or right adverse to the title of the British Coal Corporation or the Coal Authority by virtue of prescription. A purchaser from either body is not, however, protected by that provision, and neither is the Keeper.

In order to ensure that the Land Register does not mislead anyone or create a potential competition in title, the Keeper will add coal interest exclusion notes to the property sections of all title sheets when the following two criteria are met:

the title sheets either relate to minerals, or which specifically include minerals in terms which allow the conclusion to be drawn that coal is or may be included; and
there has been no grant by the Coal Authority to justify that interpretation.

The exclusion note is in the following terms or as near to them as is appropriate in individual circumstances.

Note: Notwithstanding any other terms of this Title, no interest in coal or allied minerals is included in the subjects in this Title.

Minerals under the Coltness Estate

By an unrecorded lease dated 26 and 29 August 1914, James Hamilton Houldsworth of Coltness let to the Coltness Iron Company Limited, the whole coal, fireclay, ironstone, shale and other minerals (but excluding freestone) in and under the lands and estate of Coltness in the Parishes of Cambusnethan and Shotts (under certain exceptions).

The lease was still subsisting at 1 January 1939. Accordingly, the other minerals that were let, along with the coal vested in the Coal Commission on that date, under section 3(4) of the Coal Act 1938 are now vest in consequence in British Coal. Since the minerals have vest as stated, the lease itself is now spent.

Despite the vesting of the minerals in the Coal Commission and in British Coal, many deeds conveying parts of the Coltness estate contain a reservation of minerals clause in terms that are incompatible with that vesting.

Where the progress of title contains a reservation of minerals to the proprietors of Coltness Estate and reference is also made to that unrecorded minerals lease mentioned above, or where the plans settler advises that subjects fall within the area affected by that lease, legal settlers should consider the extent to which the wording of the reservation is appropriate, all minerals except freestone having ceased to belong to the estate proprietors. If the minerals reserved to the estate proprietors included ‘freestone’, which is defined as a fine-grained sandstone or limestone, then the reservation should be entered in the burdens section but the following note should be added:

Note: The whole fireclay, ironstone, shale and other minerals (excluding freestone) under the subjects in this Title vested along with the coal in the Coal Commission on 1 January 1939 by virtue of section 3(4) of the Coal Act 1938.

The normal ‘exception’ notes for minerals, as set out in Property Section Information, should continue to be used in the property section. If, on the other hand, freestone was excluded from the minerals reserved to the estate proprietors, then the reservation of minerals should be omitted from the burdens section. In such a case, however, a note should be made in the property section that the minerals are excepted. The following style of note would be appropriate:

Note: The fireclay, ironstone, shale and other minerals (other than freestone) are excepted, having vested along with the coal in the Coal Commission on 1 Jan. 1939 by virtue of section 3(4) of the Coal Act 1938.

National Roads Directorate - Mining Code

In 1998, agreement was reached between the Secretary of State for Scotland and the Keeper with regard to the inclusion of a reference to what is known as ‘the Mining Code’ in the property section of land certificates relating to land acquired on behalf of Transport Scotland (formerly the National Roads Directorate). Transport Scotland is responsible for inter alia the development, construction and maintenance of the trunk road network in Scotland.

The Code itself is contained in the Lands Clauses Acts (including the Land Clauses Consolidation (Scotland) Act 1845) and sections 6 and 70 and sections 71 to 78 of the Railway Clauses Consolidation (Scotland) Act 1845. That legislation regulates the working of minerals under land acquired using statutory powers and makes provision for compensating mineral proprietors for minerals left unworked. The scheme has been adopted into many of the statutes (the ‘enabling’ (or ‘special’) Acts) providing for the compulsory acquisition of land by public authorities.

Where the writs submitted with an application for registration contain no reference to such an enabling Act incorporating the provisions comprising the code, any rights the landowner may have in the minerals are included in the sale. It is, however, more usual to find that reference is made to appropriate enabling legislation. For example, the special Act for present purposes is the Roads (Scotland) Act 1984 (in particular, section 110(5)). A reference to the special Act has the effect of applying the code to the conveyancing transaction. The statutory result is that the acquiring authority does not take the minerals and at the same time avoids compensating the owner for their loss.

Between 1998 and 2000, the Secretary of State for Scotland acquired land on behalf of the National Roads Directorate. Post-devolution, acquisition is carried out in the name of the Scottish Ministers. There are two methods. The first is by a general vesting declaration or statutory conveyance following on from a compulsory purchase order referring to the 1984 Act (thus incorporating the provisions of the code). Alternatively, a statutory conveyance relating to an acquisition by agreement, and which applies the code in terms of the 1984 Act, may be drawn up.

Before the above agreement was reached, land certificates issued to the Scottish Ministers did not reveal when the Mining Code was invoked. It was therefore agreed that the Keeper would, if specifically requested to do so at the time of an application giving effect to an acquisition by the Scottish Ministers using statutory powers under the 1984 Act, append to the property section of appropriate title sheets, a note to the effect that the minerals are not included in the title.

This instruction applies only to those cases in which the application for registration is accompanied by the necessary covering letter from the Scottish Government Legal Directorate (SGLD) or Transport Scotland. Samples of the style of letter, which include the note desired in each case, are shown as follows for reference. It should be noted that the onus of ensuring that the proper letter accompanies appropriate applications will rest with the applicant. For the avoidance of doubt, although land certificates are no longer issued, no question should be raised with the applicant regarding any erroneous references to the issue of a land certificate in such letters, nor should the applicant be notified that no land certificate will be issued.

Style letters

"I enclose herewith an application to register a Statutory Conveyance by …… in favour of the Scottish Ministers.

Following discussions between Solicitor’s Office and your Head of Legal Services, it has been agreed that the Land Certificate which will be issued in respect of this application will contain a reference to the Mining Code and the purpose of this letter is to serve as a reminder that the following note should be inserted in the Property Section:-

‘NOTE: the minerals are excluded from the subjects, but this is without prejudice to the operation of section 70 of the Railway Clauses Consolidation (Scotland) Act 1845, and sections 71 to 78 of that Act (as originally enacted and not as amended for certain purposes by section 15 of the Mines (Working Facilities and Support) Act 1923), as applied by section 110(5) of the Roads (Scotland) Act 1984’.

I look forward to receiving the Land Certificate in due course."

"I enclose herewith an application to register a … … in favour of the Scottish Ministers.

Following discussions between Solicitor’s Office and your Head of Legal Services, it has been agreed that the Land Certificate which will be issued in respect of this application will contain a reference to the Mining Code and the purpose of this letter is to serve as a reminder that the following note should be inserted in the Property Section:-

‘NOTE: The minerals are excluded from the subjects, but this is without reference to the operation of section 70 of the Railway Clauses (Scotland) Act 1845, and sections 71 to 78 of that Act (as originally enacted and not as amended for certain purposes by section 15 of the Mines (Working Facilities and Support) Act 1923, with any references therein to the company being construed as references to the Scottish Ministers and references to the railway or works being construed as references to the subjects in this Title and any building or works constructed or to be constructed thereon.’

I look forward to receiving the Land Certificate in due course."