Rock and a hard place – how can landowners be sure they own everything that's under their feet?
Some things so usefully underpin our daily practice as lawyers that we forget they are there. They are the heroes of our stories, but like the more interesting superheroes of graphic novels and cinema alike they are not perfect. There are limitations to the extent of their powers.
The power of ten years’ open and peaceable possession
One such superhero is positive prescription. Since the sixteenth century (Prescription Act 1594) the law in Scotland has provided a means by which one can acquire, or lose, rights on the basis of title and possession with the passage of time. Originally the period was 40 years, which exceeded the average life expectancy of the time. Life expectancy has increased, but the period of positive prescription decreased. Since 1970, except in relation to claims against the Crown to ownership of salmon fishings or of the foreshore, the positive prescription period has been 10 years.
Property lawyers can all chant together the words “if land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed… the recording [or registration] of an ex facie value deed sufficient in respect of its terms to constitute in favour of that person a real right in … that land … then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge”, although most of us choose not to, as in polling it ranks only slightly better as a way of winning hearts and minds than dropping Latin maxims in normal conversation .
We might not repeat the words out loud, but they make modern conveyancing possible. Thanks to them, and their ‘ancestors’ in the earlier statutes going back to 1594, title does not need to be traced all the way back to the Crown. If one is presented with a bundle of Sasines deeds for an unregistered property, without pausing to recall why, one automatically first identifies the title in favour of the current owner and if that was recorded within the last 10 years, one looks for the deed in their favour and so on back in time to the most recent deed recorded more than 10 years ago. If on their faces they each seem valid, and there is nothing to suggest that any of them is a forgery, we only need to worry about whether the various owners in that chain had “open and peaceable” possession of the property described by them. Generally we have an idea of what steps we might want to take if some issue is identified as a result.
Of course, if we found we had one person with an ex facia valid (and not forged) disposition in their favour recorded more than 10 years ago to the home that they had occupied openly and peaceably and without any judicial interruption and another person with a title recorded 30 years ago, but who had lived abroad in all that time we would know that the title of the person with possession trumped the title of the absentee. In effect, regardless of how it came about, the rights of the absentee will have evaporated because of their lack of possession.
Ownership of minerals
Now, if a title makes no mention of minerals – neither including nor excluding them – the working assumption is that ownership of the minerals follows along with ownership of the surface. If none of the burdens writs suggest that minerals have been reserved to a previous owner or granted to a third party in the past, it appears that the title is in its natural state and that the surface owner owns all from the sky to the centre of the earth.
Despite that, because minerals worth working tend to be hidden beneath the soil and therefore not capable of being ‘openly and peaceably possessed’ unless they are being quarried or mined, title to them cannot be propped up by prescription. A title that explicitly or impliedly includes them but is not accompanied by 10 year’s open and peaceable possession in the form of visible exploitation is not made perfect by the operation of the Act. A consequence of that we are all familiar with is the Keeper’s refusal when registering titles under the Land Registration (Scotland) Act 1979 to state that minerals are included in a title without excluding indemnity “in respect that evidence that the above named proprietor’s legal title has been vindicated by unchallenged possession for the prescriptive period has not been produced to the Keeper”, and now Section 73(2)(f) of the Land Registration etc. (Scotland) Act 2012 applies a general exclusion in respect of minerals from the Keeper’s warranty for new title sheets.
Open and peaceable possession has its limits, therefore, and that brings me to my story.
Minerals reservations: a cautionary tale
In 1907 the ironstone, coal and whole other metals, mines, minerals and fossils in (I) part of 15 shilling land of Easter Glentore and part of lands of Wester Glentore and (II) lands called Brownridge were disponed by Trustees of John Maxwell to Scott Maxwell. Often, at this point in any discussion about minerals I would be concentrating on what that actually means, in terms of minerals covered by the disposal, but that is not the focus of this particular tale. The mineral title passed through different hands until it was eventually registered in the Land Register in 1995.
In 1963 the farm and lands of Greendykeside, Longriggend, Airdrie were disponed by Trustees of Sir Thomas Watt to Margaret Sands Reynolds and that title was eventually, in 1998, registered in the Land Register, also under the 1979 Act. For some reason, and it could simply have been that the disposal was not picked up in a Sasines search because the farm names did not match, the surface title did not make any mention of the fact that the minerals had been separately sold. The title sheet created for this farm made no mention of minerals. Years went past and the farm changed hands again, with the current farm owner taking title in 2008. Towards the end of 2019, he became aware that the owners of a quarry on land nearby were advertising the quarry and the minerals beneath his farm for sale at auction. Recalling that his solicitor had, when he purchased the farm, told him that the minerals beneath the farm were included he complained to the selling agents that they were advertising his property for sale. When they assured him that their client owned the minerals in question he consulted his solicitor again, who checked his title sheet and again assured him that because there was no reservation of minerals referred to there, he owned the minerals. His solicitor offered to write to the selling agents and point this out, which she duly did.
At this point the solicitor for the seller responded with a copy of her clients’ title sheet. This title had been first registered in 1995 and therefore prior to the surface title. It included minerals beneath it and beyond it, stretching out so that they extended not only under the whole of the farmer’s land but additional surrounding land. This title sheet not only explicitly includes the minerals but did not exclude them from the Keeper’s indemnity. In fact, the only caveat offered by the Keeper is that “Notwithstanding any other terms of this Title, no interest in coal or allied minerals is included in the subjects in this Title”. It seems that at the point they were registered enough evidence that the minerals were being worked had been exhibited to the Keeper to overcome the Keeper’s usual reluctance.
The farmer and his solicitor were naturally rather shocked to see this. Had the seller’s title instead been an elderly title to the surface that had been recorded and never matched with possession, the hero of our story, prescription, would have swept it aside on the basis of the farmer’s own ex facie valid title and 10 year’s accrued possession. Our hero’s superpowers are limited in the face of property rights that are not readily openly possessed.
Delve beneath the surface title
In the same way that a surface owner will not easily gain a prescriptive title to minerals, the minerals owner will not easily lose theirs. In the case of the example referred to here, identifying that there was an adverse mineral title has been made relatively easy in that the overlaid cadastral units can be quickly found in ScotLis. If the mineral title is lurking in the Sasines register it will be harder to find but still valid.
The minerals industry is acutely aware of this, often asking for diligence beyond the surface title itself to be carried out before opening a quarry so as to minimise the risk of claims being made by third party mineral owners or being thwarted by ‘title raiders’ either wishing to hold them to ransom or to prevent extraction for other reasons. Most rural landowners simply want the reassurance that they can take stone from their own land for road and wall building without having to pay a third party, or to erect farm buildings without a fear that they will be undermined.
The risk that a title that makes no mention of a minerals reservation does not include them (or worse, that one that purports to include them does not) really is very small.
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