The Legal Consequence of Severed Mineral Titles
Under the historic Latin principle *cuius est solum, eius est usque ad coelum et ad inferos* (whoever owns the soil owns up to the heavens and down to the depths), a landowner originally owned everything above and below their plot.
However, during the 18th, 19th, and 20th centuries, large landed estates, feudal manors, and the Church Commissioners routinely severed and reserved mineral rights when transferring land for urban housing developments. Consequently, millions of UK freehold homes sit on titles where the minerals are 'excepted and reserved'.
Subterranean Trespass and Deep Foundation Risks (*Star Energy v Bocardo*)
In the landmark Supreme Court decision *Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35*, the court confirmed that a landowner's title extends to subterranean strata below the surface unless expressly severed. Consequently, drilling into severed strata without permission constitutes legal trespass.
This ruling creates severe liability risks for modern residential and commercial property development:
• Ground-Source Heat Pumps: Drilling vertical geothermal boreholes (typically 100m to 200m deep) through severed mineral strata requires consent from the mineral owner.
• Deep Piling Foundations: Driving structural concrete piles into limestone or mineral layers owned by a third party constitutes actionable trespass.
• Basement Excavations: Excavating sub-surface rock owned by a third party can lead to injunctions or damages claims.
Mortgage lenders will not lend on properties with mineral reservations if the mineral owner retains the right to enter the surface to extract minerals, or the right to 'let down' the surface without paying full compensation for subsidence damage, unless covered by an indemnity policy.
Do I Need Mines and Minerals Indemnity Insurance?
In 95% of standard residential conveyancing transactions, the mineral owner has had no active commercial presence for over a century. However, because the legal right remains recorded on the Land Registry Property Register, conveyancers routinely resolve the issue using a bespoke or standard Mines and Minerals Title Indemnity Insurance Policy.
The policy protects the homeowner and mortgage lender against: (1) Injunctions halting development or renovations, (2) Damages for subterranean trespass, and (3) Loss in property value resulting from mineral enforcement. Premiums are paid as a one-off sum (£120 to £350) and remain in force for the lifetime of the property.