I bought my house’s freehold and there’s a strange clause about mining underneath it – should I be worried?

Earlier this year I purchased a leasehold house. The property is on the outskirts of a major city with good travel links. It was my last move and is my forever home. 

Shortly after I was offered the freehold at a reasonable price, so I bought it in order to own the home and land outright. 

The property is in a former mining area. Both the leasehold and freehold documents contain a clause related to mining.

The wording is confusing but seems to suggest that a company reserves the right to mine underneath my home. It also mentions subsidence. 

Are such clauses normal for properties in England? Should I be worried?

Jane Denton, of This is Money, replies: When your property is leasehold, you have the right to occupy a home for a set period, but do not own the structure of the building or the land it sits on. 

Most flats are leasehold, but houses can sometimes be leasehold too.   

If you own a home freehold, as you do now, you own the building and the land that it stands on until the day that you sell it to someone else.

This gives you the strongest possible ownership, but also means you are responsible for everything.

It is not uncommon for leases and freehold title deeds to contain a clause about mining and minerals. 

I asked two experts for their views on whether the clause is anything to worry about. 

James Naylor, a partner at Naylor Solicitors, says: Yes, such clauses are normal.

Clauses reserving mines and minerals are not unusual in England, especially in places with a mining history. They often reflect arrangements made generations ago, rather than indicating that mining is under way or planned.

As a starting point, owning land generally brings rights over what lies above and beneath it. This was traditionally described as ownership extending upwards to the heavens and downwards to the centre of the earth, although there are important exceptions.

Historically, landowners selling land sometimes kept the valuable minerals beneath it.

This separation of ownership is known as ‘severance’. Put simply, one person might own the house and garden while someone else owns the mines and minerals underneath. These arrangements can remain in place through successive sales.

This is essentially what the clause in your deeds concerns. 

Although you have purchased the freehold of your house, someone else may still own the minerals beneath it, together with rights to extract them. 

Those rights can remain in place even when the freehold changes hands.

The reference to working ‘without making or leaving support whether vertical or lateral’ appears intended to allow underground mining without maintaining the support normally provided to the surface. 

The clause also seeks to exclude liability to pay compensation for any resulting damage or subsidence, except where statutory liability applies. 

For example, the Coal Mining Subsidence Act 1991 provides for remedial work and compensation in certain cases of coal-mining subsidence. 

It is worth stressing, however, that the inclusion of this wording does not, in itself, mean that subsidence has occurred or is likely to occur.

If you would like to know more, given that your property is in an old mining area, you could ask your conveyancer to review the mining searches undertaken when you originally purchased the leasehold, alongside the relevant title deeds.

Ultimately, there is nothing particularly unusual about mineral rights being separate from ownership of the house and garden, especially in former mining areas. 

Such clauses can remain in deeds for generations, often telling us more about an area’s industrial past than they do about what lies ahead for your home.

Natalie Bradley, partner and head of residential conveyancing at Stephensons, says: The clause you have quoted reserves ownership of the minerals beneath the property and limits the liability of whoever holds those rights if mining operations were to cause subsidence or damage. 

The wording is deliberately wide-ranging and is intended to provide maximum protection to mining companies and mineral owners.

It is important to distinguish between coal mining rights and mineral rights. 

Clauses such as this generally relate to minerals rather than coal. 

Mineral rights are often owned separately from the surface land, meaning a property owner may own the house and land but not the minerals beneath it. 

In the UK, many mineral rights remain in separate ownership and can cover substances such as sand, gravel, clay, limestone, stone, metal ores and other commercially valuable minerals.

The existence of such a clause does not necessarily mean there is a current or significant risk to your property. 

Its practical importance depends on a range of factors, including whether any mineral extraction is still taking place locally, who owns the mineral rights and whether there is any realistic prospect of future extraction. 

While there is a theoretical possibility of such activity affecting the property, planning permission and other regulatory consents would normally be required before any extraction could take place. 

For most residential properties, active mineral workings beneath or immediately adjacent to the property are uncommon.

When purchasing a property in a mining area, conveyancers would usually obtain mining or ground stability searches to identify known mining activity, past subsidence claims and any potential future risks. 

Mortgage lenders are also alert to these issues and would generally expect any significant concerns to be identified during the conveyancing process.

As you have acquired the freehold, it is worth noting that freehold ownership does not automatically include the minerals beneath the land. Mineral rights can remain separate from the freehold title, which appears to be the case here.

If the searches obtained on your purchase revealed no concerns and there is no evidence of ongoing mining activity, there is unlikely to be any immediate cause for alarm. The risk is generally low. 

However, if you would like complete peace of mind, a conveyancing solicitor could review the title documents and any mining searches to assess whether the clause has any practical implications today. 

In some cases, indemnity insurance may also be available to provide financial protection should a third party seek to enforce any rights affecting the property.