Professional Researchers
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Specialist Manorial Property Agents
Manorial Rights
What are manorial rights?
Manorial rights are certain rights which were retained by lords of the manor in England and Wales when land became freehold in the early 20th century, and can include rights to mines and some minerals, sporting rights such as hunting, shooting and fishing, and rights to hold fairs and markets.
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1. The Land Registry describes manorial rights as rights which were retained by lords of the manor in England and Wales when land became freehold in the early 20th century.
Those rights can include rights to mines and some minerals, sporting rights such as hunting, shooting and fishing, and rights to hold fairs and markets.
When copyhold tenure was abolished in 1926 and converted into freehold in a process known as ‘enfranchisement’, these rights were preserved indefinitely unless ended by written agreement between the lord and tenant.
In its written evidence, the Ministry of Justice describes copyhold tenure as: tenure of land “by copy of Court Roll”.
The roots of copyhold date back to before the Norman Conquest.
The history is complicated but in brief Court Rolls of the manor came to record the title of the tenants of the manor to their properties and the tenants were given a copy of the entry recording their title.
This is apparently the origin of the term “copyhold”. Title to copyhold land was, or became in practice, inheritable and transferable subject to the customary rents and services to which it was subject. By the seventeenth century it seems that copyhold land was held by rent rather than for services.
Nonetheless the legal form lingered on until all remaining copyhold land was “enfranchised” into freehold tenure on the 1st January 1926.
2. Since these changes the law related to manorial rights remained largely unchanged in England and Wales until the Land Registration Act 2002 which attempted to increase the transparency of such interests by requiring that they be placed on the land register.
The meaning of manorial rights for the purposes of the Land Registration Act 2002 was explained by the Law Commission in a preceding consultation document as being the following rights of the lord of the manor in respect of former copyhold land or of the copyhold tenant:
• the lord’s sporting rights;
• the lord’s or tenant’s rights to mines and minerals;
• the lord’s right to hold fairs and markets;
• the tenant’s rights of common; and
• the lord’s or tenant’s liability for the construction, maintenance and repair of dykes, ditches, canals and other works.
3. As a consequence of the changes in the Land Registration Act 2002, this is the definition of manorial rights that we used, However, the last category was made registrable under legislation from the 1920s and is therefore usually known to landowners, while the tenant’s rights of common would not be considered the established right of the lord over land owned by someone else, and are anyway required to be recorded in the registers of common land under the Commons Registrations Act 1965.
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Written Evidence Submission to the Justice Select Committee Inquiry into Manorial Rights
Therefore, it is the first three manorial rights listed above that are considered within the scope of this report.
It is “generally accepted that the first two of these... are the most important”. It is important to note that in most cases the exercise of the lord’s rights requires the consent of the landowner.
Other associated issues, such as manorial waste, relate to freehold land often still owned by the lord and are therefore not relevant to another landowner’s registered title nor this inquiry.
4. While many current owners of manorial rights are individuals who have inherited such rights, the process of enfranchisement in the 1920s also enabled lords of the manor to sell their remaining rights to third parties.
Barrister Dr Paul Stafford KC, noted, that there remains to this day “an active market for such rights and also for lordships, which can change hands for five or six figure sums.”
In one of the areas where claims of manorial rights have caused controversy, Anglesey, those claims were made by a person who bought the title of lord of the manor in 1992, although it should be noted that he has subsequently withdrawn the claims.
Equally, manorial rights are held by charities and institutions, for example the Church Commissioners and some Oxbridge colleges.
How the Land Registration Act 2002 changed the status of manorial rights.
Prior to the Land Registration Act 2002 it was often difficult to find out whether a property was affected or bound by manorial rights as they did not have to appear in the land register.
In some cases if rights were not contained in the register they could be recorded in old deeds to a property, but in many cases they would simply not be known to the freehold property owner.
Following changes introduced by the Land Registration Act 2002, manorial rights lost their ‘overriding interest’ in relation to properties if they were not protected by being registered before 13 October 2013.
This means that, following the deadline, the holders of the manorial rights will lose these rights when the affected property is sold if those rights are not registered before the sale.
We heard that manorial rights owners, and in particular charitable organisations or trustees of estates, were often advised by their lawyers that it was their duty to register claims to protect a potential asset from extinguishment.
The Land Registry summarised the position as follows: a new owner who buys the land or property after 12 October 2013 may potentially buy it free of these interests if they weren’t protected prior to the sale. Until the property is sold any rights that exist continue indefinitely and an application can still be made to protect them.
Purpose of the reforms
Overriding interests are third parties’ property rights that bind a purchaser of the affected land even though the rights are not mentioned in the register of title (commonly called “the land register” or “the register”) kept by the Land Registry, and even though the purchaser may not know about them.
The 2001 Law Commission and Land Registry report, Land Registration for the Twenty-First Century, A Conveyancing Revolution, which contained the draft Bill which was subsequently enacted as the 2002 Act, commented that:
The range of interests that are presently overriding is significant. They include many easements (whether or not these have been expressly granted or reserved), the rights of persons in actual occupation, leases granted for 21 years or less, as well as some obscure interests that may have very serious effects on the registered proprietor (such as manorial rights).
Overriding interests therefore present a very significant impediment to one of the main objectives of the Bill, namely that the register should be as complete a record of the title as it can be, with the result that it should be possible for title to land to be investigated almost entirely on-line. The Bill seeks to restrict such interests so far as possible.
Exercise and value of manorial rights.
Evidence of use.
Written evidence suggested that it may be that the nature of manorial rights itself minimises the likelihood their exercise will cause real problems to landowners:
In relation to mines and minerals the legal position is generally that the lord of the manor owns the minerals beneath the land, but the landowner’s permission is needed if the person owning the rights wants to dig them up.
Planning permission and other relevant regulatory permissions would also have to be obtained, In the absence of local custom the result is that the owner of the rights and landholder can each prevent the other from exploiting the minerals.
Similarly, rights to markets and fairs confer an exclusive right to hold markets and fairs within the manor but do not generally permit the holding of a market on an individual property. It is unclear on the evidence available that there are any real problems being caused by the existence of [manorial] rights to the owners of land subject to them.
As Dr Stafford pointed out this should mean that the impact of manorial rights on the freeholder of a property will “generally be much less serious than may at first appear” because “in the vast majority of cases owners can veto access to their land so that the rights cannot be used”.
However Mr Jessel suggested that while the law on consent was very clear in the case of manorial mineral rights, it was less so in other cases, for example sporting rights where he claimed the position was “simply not known”.
Further more Mr Coveney agreed and stated that it would depend on the custom of the manor in each case and, if there was ever a dispute, it would ultimately be for the court to decide, on the basis of the evidence, what the custom was in each particular case.
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Lord Faulks also pointed out the potential for manorial rights to have a “negative value” in relation to the law on consent–that is, the situation where neither the landowner nor the manorial rights holder can extract minerals without the other’s consent being of potential value to the latter.
Pursuing this point in the context of future land development, Mr Towns said that:
If a manorial lord has a demonstrable interest in the land, it is entirely his right to seek to protect his interests or to require a commercial payment to release them... much like a right of way bisecting a development, or sporting rights held in gross, third party interests need to be taken into account by developers.
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Types and locations of manorial rights
While there are no examples in the evidence received of manorial rights being exercised in urban residential areas, such as Welwyn Garden City, some of the evidence notes current use and benefits in more rural areas, particular in terms of minerals.
Mr Troman said that he had “experience of several cases of manorial interests in sand and gravel deposits which have yielded in excess of [a] million pounds in royalties”, while the Church Commissioners’ evidence stated that their manorial mineral interest extended to around 300,000 acres across various parts of the country and that the value of these interests was “substantial” with revenue generated making an important contribution to their core work.
Mr Towns accepted that “you cannot exercise sporting rights on a residential housing estate”, while most who had registered manorial rights “generally really have an eye on minerals because you do not have to have worked the minerals. You cannot be said to have abandoned minerals simply because you have not worked them for 100 years or so.
There is more value in rural property.”
However, he also noted that, while some of his clients had taken a blanket approach to registering claims to manorial rights, others had not sought to register rights in areas of dense residential development.
Mr Tetlow also made the point, which is reflected to some degree in the types of cases cited in evidence during the course of the inquiry, that landowners in more rural locations are often more accepting of third parties holding rights over their land:
There is a [distinction] between rural land and urban land, it does not change hands very often. It gets passed from father to son, and in many cases it was the grandfather who enfranchised. Grandfather knew that he was not getting the minerals and that the sporting rights were reserved, and that knowledge was passed on. It was not written down anywhere and that was why it was an overriding interest.
In many cases, when they had never had these rights and nothing was being taken away from them, but the people who had those rights had to register something in order to be able to keep them, they said, “That rings a bell with me. I seem to remember grandfather mentioning something about weird and wonderful rights.” They accepted it and, in those circumstances, usually chose to do nothing about it.
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We therefore raised the possibility of distinguishing between the status of different types of manorial rights and the locations upon which they are held with various witnesses. Making any distinction may be difficult as the “rights exist in perpetuity and the use and character of land may change over time”.
Where you have a property right, use should not be the key factor; it should be whether you own the right”. She acknowledged that in relation to the question of abolition of rights the distinction might be more applicable.
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Non-manorial rights to mines and minerals
39. In some cases there is a distinction between specific ownership rights to mines and minerals and manorial mineral rights which has added to confusion about the status of manorial rights. For example the written evidence from Mr ap Iorwerth noted a recent example of the Crown Estate registering specific rights to mines and minerals in Anglesey.
Both Mr Jessel and Mr Coveney clarified the distinction during oral evidence.
The 2002 Act preserved the overriding status of certain ownership rights to mines and minerals held apart from the surface. In many parts of England and Wales it is fairly common that one person will own the surface of the land but someone else will own the land below the surface known as the ‘mines and minerals’.
As the Land Registry website indicates, there are varying types of rights and ownership which can range from owning the mines and minerals outright and being able to take them away, whether or not the owner of the surface agrees, to having some rights to them that can be exercised with the agreement of the surface owner. Where someone owns the land comprising the mines and minerals below a property they will continue to own it indefinitely under the Land Registration Act 2002. They can apply to register it if they wish but do not have to and this will not affect their ownership.
Fracking’
We also heard that the existence and exercise of manorial rights was occasionally linked to the extraction of shale gas and the ‘fracking’ debate. The written evidence from The Peasants’ Revolt raised the possibility that manorial rights owners might demand compensation for any extraction work that takes place in land where they own the mineral rights.
Mr Towns also suggested to us that there might be value related to shale gas deposits for manorial rights holders.
Other evidence received indicated that it would be very difficult for a manorial rights holder to obtain any value from extraction of shale gas or the provision of access for the purposes of extraction. The Ministry’s evidence noted that while the precise nature of manorial rights might vary from manor to manor, “they are subject to the general law so that coal is vested in the Coal Authority and petroleum is vested in the Crown irrespective of any manorial right. Manorial rights to mines and minerals do not therefore include rights for extraction of gas or oil, including shale gas.”
Mr Jessel looked to clarify the situation further, stating that he could not see how the manorial rights holder could extract value from authorising access for fracking as “the insertion of a pipe ... is a trespass against the landowner; it is not a trespass against the lord. The lord has the proprietary right in the mineral substance ...
If the lord has no interest in the mineral value of the gas or oil and has no possessory right to the land [they] cannot bring trespass proceedings”.
Lord Faulks highlighted the fact that the Infrastructure Bill, currently proceeding through Parliament, would, subject to further amendment, contain provisions related to the extraction of shale gas that were likely to provide further clarity to the situation.
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Conclusion
41. We acknowledge that there may be certain manorial rights, particularly those related to mines and minerals over rural land, that are of considerable and real value to the rights holders. However, we also believe that the situation whereby an individual can claim, for example, certain sporting rights over an urban residential home is anomalous. Manorial rights holders may withdraw their claims, as has happened in the case of Anglesey.
We therefore encourage those claiming rights over properties in dense urban residential areas where exercise and value cannot realistically be expected, for example in some areas of Welwyn Garden City, to consider whether it may be more prudent to withdraw such claims.
However, we also accept the view of Professor Bray and others that, notwithstanding separate considerations in relation to abolition, to make any formal legal distinction between different types of manorial rights within the current legislative framework related to the 2002 Act would not seem workable given it is ownership not use that is the most important consideration in terms of existing property rights.
Furthermore, based on the evidence received, it is our view that the exercise of manorial rights in a situation that impacts adversely upon the landowner or against their wishes will in practice be minimal because of the fact the landowner’s consent is required in most cases related to manorial mine and mineral rights, and the fact that certain manorial rights could not conceivably be exercised upon urban residential land.
We also believe that the situation in relation to fracking is clear, and that any link of this debate with that of manorial rights is erroneous.
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Finally, we are surprised that neither the Ministry of Justice nor the Land Registry was able to provide any substantive evidence or information on the exercise of manorial rights in England and Wales. We recommend that the Ministry and/or the Land Registry instigate research to assess the prevalence of exercise of manorial rights in England and Wales, and the impact and value of that use.
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Published Written Evidence from Christopher Jessel (MAR 04)
Submission to the Justice Select Committee Inquiry into Manorial Rights
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Manorial Rights
Executive Summary
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The expression “manorial rights” in the Land Registration Act 2002 (“LRA 2002”) refers to the rights of a lord of a manor to minerals in, sporting over, or markets affecting copyhold land enfranchised under Act of Parliament, or to require the owner of such land to do, or contribute to the cost of, works.
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The lord does not have a unilateral right to go on to the land to exercise the rights without the landowner’s consent save in exceptional cases but can prevent the landowner taking minerals or game on the land or holding a market.
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Other mineral or sporting rights belonging to a manor can derive from an Inclosure Act or an agreed enfranchisement but they are not “manorial rights” within the LRA 2002.
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Legislation could give landowners a right to buy out the mineral and sporting manorial rights. That would be consistent with the policy of Parliament in the Copyhold Acts 1841 to 1894. Rights of market and obligations to do or pay for works which have not been exercised for 20 years could be abolished.
Introduction
1. I am a solicitor, and until retirement in 2008 I was a partner in Farrer & Co of Lincoln’s Inn Fields practicing property law. I acted for lords of manors and for people who disputed rights claimed by lords. I am still a consultant to the firm and I have provided advice to assist their clients in both categories but this evidence is personal and individual and has no involvement with that firm.
2. I am the author of The Law of the Manor first published 1998, second edition 2012. The book includes a discussion of the nature of manorial rights and an account of minerals, sporting and markets and fairs and takes into account the LRA 2002.
3. I appreciate that the Committee will already have received advice on the legal nature of manorial rights. My evidence may duplicate that but some aspects of the law are obscure or unsettled.
Meaning and proof of Manorial Rights
4. Although the meaning of “manorial rights” is not defined in case law, the comparable “seigniorial rights” was the subject of the leading case Townley v Gibson in 1788 followed by several nineteenth century decisions on Inclosure Acts. These cases held that it meant established rights of the lord over land owned by someone else.
5. The LRA 2002 does not define “a manorial right”. Paragraph 11 of Schedules 1 and 3 re-enacts with amendments a provision formerly in the Land Registration Act 1925 (“LRA 1925”) section 70(1)(j) which referred to manorial rights as binding land “until extinguished”. The LRA 1925 in turn derived “manorial rights” from the Land Registry Act 1862 section 27(2), which did not define it either.
6. Manorial rights principally affected copyhold land.
Most copyhold land belonged to its owner as fully as a freehold but it was conveyed in a different way and was subject to the rights of the lord of the manor. Enfranchisement converted it to freehold. That could be done by agreement at common law but was more easily done under the Copyhold Acts 1841 to 1894 on the initiative of either lord or tenant. The Law of Property Act 1922 (“LPA 1922”) converted all remaining copyholds to freeholds on 1 January 1926.
7. Manorial rights originally included payments such as entry fines, quit rents, reliefs and heriots and also rights to timber. Following enfranchisement those rights were extinguished on payment of compensation by the landowner to the lord calculated according to rules laid down by Parliament. The LPA 1922 allowed a period of time for compensation to be agreed and the rights continued until payment but no payments were due after 1950. The words “until extinguished” in the LRA 1925 refer to that process.
8. Other rights of the lord to minerals, sporting and markets and to contributions to the cost of works were not extinguished but were preserved by the Copyhold Act 1894 section 23 and the LPA 1922 schedule 12 paragraphs (5) and (6). “A manorial right” in the LRA 2002 appears to mean the preserved rights. I understand that is the view of the Law Commission and of the Land Registry.
9. While that is the better view, it is arguable, in the absence of a definition, that “manorial right” includes minerals and sporting rights under Inclosure Acts and agreed enfranchisements of the types discussed below, and other miscellaneous rights such as rent charges reserved on enfranchisement and small payments known as rents of assize. In my view a court would be unlikely to interpret the expression in that way.
10. The lord may own roadside verges and common land.
There may be rights to hold manor courts and appoint manorial officers and to ceremonial renders such as a pair of gloves. The lord may also have escheat where, on the insolvency of a landowner, a liquidator or trustee in bankruptcy has disclaimed burdensome freehold land: while title normally passes to the Crown, in rare instances it might pass to the lord. While those could be described as “manorial rights” they are not relevant to another landowner’s registered title and are not covered by the words in LRA 2002.
11. Manorial mineral and sporting rights and liability to do or pay for works derive from legal custom which in theory existed before the coronation of Richard I on 3 September 1189. Some customs are general and recognised by the courts as being found throughout the country: others are special to particular manors and their terms must be individually proved.
12. A market does not exist by custom. It is a right known as a franchise and in theory was created by charter from the Crown or by Act of Parliament. If it pre-dates 1189 it is authorised by the Statute Quo Warranto 1290. If later the claimant should in theory produce a charter or an Act: if that is not possible, but the market is shown to be long-standing, the courts will often presume one.
13. Manorial rights can be sold or given away from the manor: although they become owned by someone who is not the lord they are still manorial rights.
14. Registration of a notice under the LRA 2002 does not itself establish that the lord has any rights but simply protects any rights which may exist.
Manorial mineral rights
15. By general custom the lord of the manor could not open new mines in copyhold land without the consent of the copyholder. That was established by cases including Player v Roberts (1631), Bishop of Winchester v Knight (1717), Grey v Duke of Northumberland (1806) and Bourne v Taylor (1808). Originally a similar rule also applied to felling timber trees but the timber rights of the lord were extinguished on enfranchisement.
16. Correspondingly by general custom the copyholder could not open mines in the copyhold land without the consent of the lord. That derived from the doctrine of waste under which landholders who did not own the fee simple could not make physical alterations to their land.
17. In Eardley v Granville in 1876 Sir George Jessel Master of the Rolls said “The estate of a copyholder in an ordinary copyhold (for it is an estate) is an estate in the soil throughout, except as regards for this purpose timber-trees and minerals. As regards the trees and minerals, the property remains in the lord, but, in the absence of custom, he cannot get either the one or the other, so that the minerals must remain unworked, and the trees must remain uncut. The possession is in the copyholder; the property is in the lord.”
18. As there was a mutual veto both parties had to cooperate if the minerals were to be worked. Common practice was for both to grant a mineral lease or licence and the royalties to be divided. That remains the situation after enfranchisement.
19. In some manors there was a special custom that the copyholder could work minerals on the land without any need for the lord’s consent. That was upheld by the House of Lords in Lord Salisbury v Gladstone in 1861.
20. In a few manors there was a special custom that the lord had a unilateral right to take minerals by underground working only. The House of Lords decided in Wolstanton Ltd v Newcastle-under-Lyme Corporation in 1940 that the lord or a licensee of the minerals must not withdraw support from the surface or cause subsidence. Therefore although unilateral working may in theory be permissible, the law imposes such tight restrictions that it may not be practicable.
Manorial sporting rights
21. I would expect that the ordinary rule for minerals and timber also applied to sporting so that the lord had no right to go on to the copyhold but could prevent the copyholder killing wild animals but I have not found any direct legal authority on the point. There is some support in Davies Case in 1688 and Tilbury v Silva in 1890. The issue does not seem to have been litigated, possibly because the value at stake was not worth the cost.
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22. This view is supported by the Game Act 1831.
Trespass is a civil wrong but the Act made it a criminal offence to trespass in pursuit of game. Section 35 contains an exemption for the lord of the manor or the lord’s gamekeeper. That would make sense if the lord owned the game rights but had no right to go on to copyhold land. The copyholder could sue the lord in trespass but the lord would not have committed an offence.
23. Even though the lord may not have a right of access, the sporting rights can still be useful. Although the lord could not shoot over the land, neither could the copyholder, thus preserving the game. It is common contemporary practice on the sale of cottages from sporting estates for the seller to reserve sporting rights without any right to go on to the sold land to exercise them. This prevents the cottage owner from putting out a bowl of corn and, when birds (raised at the expense of the estate) come down to feed, taking and eating them.
24. Some lords seem to have claimed the right to go on to copyhold land to hunt and hawk. As manorial sporting rights must in theory have existed in 1189 it is likely following Moore v Earl of Plymouth in 1820 that the right would be limited to exercise in a manner possible in 1189 which would exclude the use of firearms.
25. In Gunnerside Estates Limited v Milner in 2010 the Adjudicator to the Land Registry decided that a notice of manorial sporting rights on the register of title did not infringe the landowner’s human rights. The decision seems to have assumed that the owner of the rights could come on to the land to shoot game but the point was not relevant to the adjudication and does not seem to have been discussed.
26. Some lords had franchises of free warren which allowed them to take game on copyhold land but after Morris v Dimes in 1834 it was difficult to establish title. Free warren was abolished by the Wild Creatures and Forest Laws Act 1971.
27. If a lord has no ancient right to go on to former copyhold land to shoot but has in fact done so for at least 30 years and the landowner has not resisted access then the lord may have acquired a profit à prendre under the Prescription Act 1832. That would not be a manorial right but a statutory right conferred by Parliament.
Similar mineral and sporting rights
28. Other rights which derive from manors are not manorial rights within the LRA 2002 although they may be confused with them. They normally involve separate ownership of the mineral strata from the surface. They were created by inclosure awards and by agreement on enfranchisement and often do include express rights to go on the land. Although they do not need to be noted against a registered title it is likely that some have been.
29. Several thousand Inclosure Acts were passed in the 18th and 19th centuries to convert manorial waste, which was owned by the lord but subject to rights of common, to enclosed fields. The Acts authorised Awards which extinguished the grazing and other rights over the common land and compensated the commoners by allotting parts of it to them as freehold. Lords frequently wished to retain mineral and sporting rights over the allotted land. Early Inclosure Acts reserved “seigniorial rights” but Townley v Gibson decided that a lord who owned the waste before inclosure could not also claim to have had seigniorial rights over it because people can not have rights over their own land.
30. Subsequent Inclosure Acts and Awards therefore often included express rights for the lord to enter the land to open shafts and do other things necessary for working minerals, or to take game. Although such rights may still belong to the lord of the manor, in my view since they are statutory rights conferred by Parliament they are not “manorial rights” in the sense used in the LRA 2002.
31. If the land was enfranchised either at common law or under an Act the parties could agree that in return for the copyholder having to pay a reduced sum as compensation the lord would have enlarged mineral or sporting rights. Even if before enfranchisement the lord had manorial rights, the effect of such a bargain was to extinguish them and create by agreement new rights on new terms. Although they reflect a manorial origin, in my view they are not manorial rights within the LRA 2002.
Markets and Fairs
32. Most functioning market rights now belong to local authorities or commercial companies although a few may still belong to lords of manors. (Spook Erection Ltd v Secretary of State for the Environment in 1988 concerned manorial market rights owned by a company.)
33. In the absence of a franchise of market anyone can organise an informal “concourse of buyers and sellers”. The franchise creates a monopoly restriction which enables the franchisee to prevent anyone else from holding a market within the franchise area, such as 6 2/3 miles from a town centre.
34. A franchise does not by itself give the market owner any right to hold it on someone else’s land. It is not clear why the LPA 1922 includes markets in the list of preserved rights but possibly it was considered that otherwise the former copyholder would take free of the restriction and be able to hold a rival market on the enfranchised land.
35. A franchise of market is not lost by non-use. In the Middle Ages many lords obtained franchises in the hope of establishing a commercial venture, but the endeavour failed. A lord of such a manor may now seek to revive the ancient market rights in modern conditions.
Obligations of construction and repair
36.LPA 1922 Schedule 12 Paragraph (6) preserves certain obligations existing on 1 January 1926 for construction, maintenance, cleansing and repair of dykes, ditches, canals, sea or river walls, piles, bridges, levels, ways and other works for the benefit of land within a manor or for abating nuisances within it. Where they exist, these will usually be known to the landowner.
Recent exercise
37. I have advised on manorial mineral rights. One client as lord of a manor obtained an income from extraction of sand and gravel in former copyhold land. Another client as landowner had to make payments to a lord for a gravel pit on her land. I also know of (but did not advise on) a lord who received payments for a building stone quarry on a former copyhold.
Arguments for and against abolition and implications of abolition
38. Manorial mineral rights are not positive (to do an act) but restrictive (to restrain mineral working by the landowner) since the lord has no right to go on to the land. Even in the rare instances where the lord has a power to work underground, that must not cause subsidence. Therefore the rights do not interfere with the landowner’s normal occupation of the land.
39. Manorial mineral rights can be valuable. While the LPA 1922 abolished the lord’s right to timber (usually worth half the value of the timber on the copyhold land: see LPA 1922 Schedule 13 paragraph 12) it preserved mineral rights.
40. In my view in the absence of special custom the lord can not enter on land to exercise manorial sporting rights although the law is not clear. Where the lord owns a sporting estate the ability to prevent an adjoining landowner from killing birds raised on the estate adds to its value but again should not interfere with the landowner’s normal occupation.
41. Parliament could give the landowner an option to extinguish manorial mineral and sporting rights. This could be based on procedures used under the Copyhold Acts and the LPA 1922. The compensation for minerals might be typically half the value of unworked deposits, reflecting the prospect of planning consent and the costs of working. The compensation for sporting rights would reflect the diminution in value of any adjoining land of the lord.
42. Where a market was originally granted to a lord the law could be amended to make the rights free standing and to cease any connection with the manor. Market rights which have not been exercised for say 20 years could be extinguished.
43. Obligations to do works which have been enforced say within the last 20 years and which still serve a useful purpose should be protected. Otherwise they should be abolished.
August 2014.
Written evidence from Dr Paul Stafford
Submission to the Justice Select Committee Inquiry into Manorial Rights
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Executive summary
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Manorial rights are property rights whose owners are protected from dispossession of those rights by the Human Rights Act 1998.
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For legislation which abolishes those rights to be HRA compliant, it will be necessary to provide financial compensation to owners. That compensation will be substantial, and its cost would be met by taxpayers. The process of establishing compensation will be protracted and expensive for government. Alternatively, legislation could give the owners of property subject to manorial rights the right to buy out those rights.
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The problems caused in Anglesey and elsewhere by the Unilateral Notice Procedure concern the law and practice of land registration rather than the law of manorial rights. These problems can be addressed by procedural changes introduced by the Land Registry.
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A more serious problem is that of manorial waste because of its potential to change land ownership with major impact on local residents. Again, this problem should be capable of satisfactory management if addressed by the Land Registry and where necessary with input from the Crown Estates Commissioners.
Introduction
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I was called to the Bar of England and Wales in 1987 and since 1992 have been in independent practice as a barrister in chancery chambers at Ten Old Square, Lincoln’s Inn, London WC2A 3SU. My practice is mostly concerned with property and construction law but since 2008 has involved significant experience dealing with manorial rights and land registration. I have acted for and against lords of the manor in relation to manorial rights issues. I have also acted for charitable and non-charitable trustees in connection with manorial mineral rights and chancel repair liability arising from ownership of the lordship of a manor. That experience has included both advice and representation in court at various levels, including the tribunal of the Adjudicator to HM Land Registry (now called the First Tier Tribunal of the Property Chamber), the Chancery Division of the High Court, the Court of Appeal and the Supreme Court. I am the author of a number of published articles (hard copy and online) concerning manorial rights, and since 2012 I have been giving lectures to solicitors on the subject in the context of associated issues such as land registration and fracking. In case it is of relevance, I should disclose that in the Welsh Assembly elections of 2011 I stood as a candidate for the Conservative Party.
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I was unaware of the existence of this inquiry until I received an email from Mr Beale, clerk to the Committee, who invited me to submit written evidence. As at the date of this submission, I have read the transcript of the Committee proceedings for the first day of evidence on 15 October 2014, together with the written submissions of the witnesses before the Committee on that date. I agree with the analysis of the law and the conclusions given in the submissions from the two practising lawyers, Mr David Towns of Bond Dickinson LLP, and Mr Christopher Jessel of Farrers LLP. I am also in broad agreement with the written evidence given by the Chartered Minerals Surveyor, Mr Timothy Troman, which is consistent with my own knowledge and experience of manorial mineral rights and mineral rights derived from manorial title which are now statutory pursuant to parliamentary Inclosure Acts and awards made pursuant to those Acts.
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Against that background I see no purpose in rehearsing the matters so clearly set out by Mr Towns, Mr Jessel and Mr Troman, but I want instead to make some modest proposals for reform of the existing position so that the distress recently caused to property owners in Anglesey and elsewhere may be averted. I also want to focus on a particular matter which appears not to have been dealt with in the earlier evidence.
Manorial rights – anachronistic or misunderstood?
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First, however, and fundamental to the debate about whether manorial rights are a feudal anachronism with no place in the 21st century, is the point that manorial rights are a species of property rights which are often commercial in nature and capable of being bought and sold in the same way as bricks and mortar. Their origins date back to the Norman Conquest and beyond, when all land in England was held in manors whose ownership was confined to the upper echelons of the feudal pyramid at whose apex stood the Crown in whom, ultimately, all land was vested. However, the 1289 Statute of Quia Emptores (which remains in force) effectively brought an end to the monopoly of ownership of manorial rights hitherto enjoyed by a privileged elite. What the statute did was to provide for the alienability of land by those who held it in fee simple (the old term for freehold) so that ownership of and rights affecting that land could be sold to third parties for cash instead of being granted to tenants for services. Land sold as freehold went out of the manor and was no longer subject to manorial rights unless such rights were reserved to the lord in the conveyance. Conversely, land which stayed in the manor as copyhold remained subject to manorial rights some of which were retained under the Law of Property Act 1922 (‘the 1922 rights’) and continued to affect the land after its statutory metamorphosis into freehold in 1926.[1] By that date the process of break-up and extinguishment over the centuries meant that the number of lordships had shrunk from about 20,000 in medieval England to no more than several thousand in England and Wales. By 2003 the number of lordships registered with the Land Registry was about 400. However, since there has never been any requirement to register, the actual number today may be about 2,000.[2]
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For present purposes, the following points about the 1922 rights are important:
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(1) Between 1926 and 1950 the newly enfranchised freeholder could buy out the remaining rights from the lord of the manor under a statutory compensation scheme. Many did. Using that experience, such a scheme could be devised again.
(2) The lord could sell the rights to third parties. There is currently an active market for such rights and also for lordships, which can change hands for five or six figure sums. Reasons for purchase include commercial requirements, the prospect of speculative gain, and antiquarian interest.
(3) The rights could not be exercised over (or under) the freeholder’s land without the freeholder’s consent. The freeholder was therefore able to stop the lord or anyone to whom the lord had sold them from doing anything with the rights.
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Two observations arise. First, manorial rights are property rights recognised at common law and by statute. The owner of those rights is entitled to protection of them under Article 1 Protocol 1 of the Human Rights Act 1998. To abolish those rights would dispossess owners of their property. Legislation to this effect without adequate compensation would be incompatible with the HRA and, if upheld in the English courts, would be likely to result in actions against the UK government at Strasbourg, where the legislation would be declared unlawful and dispossessed owners would be awarded damages. The cost would be substantial and would be borne by UK taxpayers. Equally, if legislation did provide adequate compensation, the costs would again be substantial and would fall on taxpayers, and the working out of the legislation would doubtless result in numerous cases in court. Buy-out legislation, by contrast, would not require compensation funded by taxpayers but it would require fair valuation of the rights concerned. The process would be expensive and the cost for some prospective purchasers may be out of reach.
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Second, the problem which the 1922 rights create for freehold owners who buy their property in ignorance of such rights will generally be much less serious than may at first appear. That is because in the vast majority of cases owners can veto access to their land so that the rights cannot be used. For homeowners, this ought to mean that there is no effect on the value of their property, its saleability, or its suitability for mortgage or re-mortgage. If prospective purchasers or lenders think otherwise, they are badly advised. Although the law relating to lordships and manorial rights can be technical and complex, the legal profession had been well versed in it for centuries by the time of the 1922-1925 legislation, and there is no reason why the profession today cannot provide a better service by treating it as something which may need to be advised on in any residential conveyancing transaction. This has happened with chancel repair liability (‘CRL’). Since the House of Lords’ decision in Aston Cantlow PCC v Wallbank [2004] 1 AC 546, CRL is now the regular subject of enquiries before contract on conveyancing transactions. Insurance is available against the possibility of CRL unexpectedly arising after purchase.
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The Unilateral Notice
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The Unilateral Notice raises different issues because the evidence from Anglesey and Welwyn Garden City shows that its service on the unsuspecting homeowner can generate a high level of anxiety. The Land Registry is rightly cautious about the neutral role it must have as a registration body which means that it cannot advise the recipients of such notices about their particular case. However, it seems hard to believe that a standard form explanation cannot be drafted in fuller and simpler language to accompany the Notice. The explanation could, for example, say that where rights under the 1922 Act were claimed in the Notice, then normally they could not be exercised without the freeholder’s consent.
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The Unilateral Notice procedure reflects the objective of the Land Registration Act 2002 (‘the LRA 2002’) to enhance the protection given to the interests of third parties over registered land.[3] This currently operates in a way that makes life much easier for the claimant to the manorial rights than for the owner of the property which the claimant says is subject to those rights. Land Registry Practice Guide 19 contains the following:
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2.3.3 Unilateral notices
A unilateral notice may be entered without the consent of the relevant proprietor. The applicant is not required to satisfy the registrar that their claim is valid and does not need to support their claim to the interest with any evidence. The registrar will however check that the interest claimed is of a type that may be protected by unilateral notice.
The relevant proprietor is not notified of the application until after the entry has been made so they will not usually be able to object to the application. However, they will always be notified after the application has been completed. They can then apply at any time to cancel the notice and by doing so require the person claiming the benefit of the protected interest to prove the validity of their claim.
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There are two elements to a unilateral notice entry: the first part gives brief details of the interest protected and identifies that the entry is a unilateral notice; the second part gives the name and address of the person identified by the applicant as the beneficiary of the notice. This information is necessary as it is the beneficiary who will be served with notice and required to prove the validity of the interest if the relevant proprietor applies to cancel the notice.
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The lack of requirement for the applicant to satisfy the registrar that his claim is valid means that there is no scrutiny of his claim at the stage of entering the notice. If the Land Registry introduced a requirement that a claimant to manorial rights would need to show at least a prima facie case that he was entitled to those rights before entering the notice, it would mean that the applicant would need to research the title and provide evidence in support before the Land Registry would agree to enter the notice and serve it on the property owner. This would mean extra work for the Land Registry, involving scrutiny by legally qualified staff, and this would no doubt require a higher fee from the applicant. The higher hurdle which the applicant has to overcome would have the effect of discouraging or eliminating weak applications, and so would the higher fee. The combination of these procedural steps, together with the fuller explanation from the Land Registry discussed above, would go far to mitigate if not eliminate the problems caused in Anglesey and Welwyn Garden City.
Manorial waste - the case of Burton v Walker
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A further and more serious problem for manorial rights law concerns the ownership of manorial waste. Historically, the waste of a manor was its uncultivated part – land that was neither demesne nor tenanted nor copyhold but was available to lord and tenants for such purposes as grazing cattle or sheep. The ownership of waste is incidental to the right of lordship. As a matter of law, the lord of the manor is entitled to freehold ownership of the waste of the manor[4], and the extent of this waste may be considerable. The lord’s right to waste is of great importance because in England and Wales large areas of land remain unregistered and unoccupied. If no-one claims ownership to such land it belongs to the Crown. However, the Crown Estate may be unaware of its existence and even if aware may be unwilling to assert an interest over it in order to avoid the risk of unknown liabilities which may fall on the owner. Yet a lord of the manor may claim such land as part of the waste of his manor and acquire freehold title from the Land Registry so that he becomes registered proprietor in possession and is given the statutory protection under Schedule 4 of the LRA 2002 that such status confers. The public availability of Land Registry title deeds and plans means that it is possible to identify areas of land which nobody owns so that the lord, if he can establish that the land falls within the boundary of his historic manor, can gain title to it. The land may be a grass verge, or a plot (that could become a ransom strip), or a much larger area.
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A spectacular example of this process in action comes from the recent and widely reported case of Burton v Walker. Mr Burton, after a career in banking, moved to north Lancashire and acquired an edge of village house with land next to open moorland known as Ireby Fell. The Fell had been registered as a common under the Commons Registration Act 1965 and for more than 100 years had been managed by the parish committee on behalf of the villagers, who used it for recreational purposes. After buying his house, Mr Burton found himself in dispute with the vendors. The dispute was settled by their agreeing to let him pay them £1 for the lordship of the manor – a title they had never registered or used during their time at the property, and which had not been included in the original sale. The Land Registry granted Mr Burton’s application to be registered as lord of the manor of Ireby, and then Mr Burton claimed ownership of verges and strips next to villagers’ houses asking them to move their cars and not to allow their gardens to encroach on what he claimed was his land. Next Mr Burton claimed Ireby Fell saying that it was manorial waste, and the Land Registry granted his application for ownership made in his capacity as lord of the manor. Thus, for a nominal sum, he became registered owner of 362 acres of moorland in glorious fell country.
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On the villagers’ challenge to his two titles, the court held that both registrations were mistakes because the lordship had been extinguished by 1600 when the land had escheated to the Crown. Hitherto unaware of the land or the dispute, the Crown Estate was notified of this finding after the trial but declined to become involved. The court had deprived Mr Burton of his title to the lordship but, on the basis that he was now the registered proprietor in possession of the Fell, it exercised its discretion to let him keep the 362 acres because he had spent time and money on the land, that the Crown had shown no interest in it, that the villagers had no better title to it than he did, and that the Land Registry’s mistakes were not his responsibility. The Court of Appeal upheld the lower court’s decision and the Supreme Court refused permission for a further appeal.
Reform and scrutiny
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For the purpose of an inquiry into manorial rights, the decision in Burton v Walker would appear to provide a powerful argument if not for the abolition of the rights preserved by the 1922 Act then at least for a change in the law which entitles a lord to ownership of waste. Mr Burton was the beneficiary of two mistakes by the Land Registry and the unwillingness of the Crown Estate to assert ownership of the land which had earlier escheated to the Crown. As a result, for just £1, he acquired 362 acres of spectacular moorland fell over which he granted (and was paid for) shooting rights and grazing rights. This would affront the sense of justice and fairness of most reasonable people. Yet the case is as much about the law and practice of land registration as it is about manorial rights. The performance of the Land Registry in scrutinising Mr Burton’s two applications was inadequate; and the Crown Estate’s position, while understandable in view of its limited resources and unwillingness to take on potentially burdensome liabilities, will no doubt encourage others who may wish to follow Mr Burton’s example. The correct response may not be legislative intervention into manorial rights but closer scrutiny and control of the transfer and registration of those rights by the Land Registry which is able to make rules that will avoid the mistakes made in its handling of Mr Burton’s applications. For the Land Registry to do that, it needs proper funding, property lawyers qualified to deal with manorial law, and accountability to ministers and parliament. There would be grave danger in moving its operation to the private sector.
October 2014​
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Published Written evidence from The Church Commissioners for England (MAR 18)
Submission to the Justice Select Committee Inquiry into Manorial Rights
Inquiry into Manorial Rights
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For historical reasons, the Church Commissioners for England are Lords of the Manor of over 197 manors in England. One of the assets associated with these manors is the ownership of manorial mineral rights. These rights subsist in former copyhold land, where the Church Commissioners (or their predecessors) took care to ensure the mineral ownership was preserved to them on enfranchisement in the 19th and early 20th centuries, and also in former common land which was enclosed as part of the enclosure movement, with the minerals being reserved to the Lord of the Manor on enclosure. Taken together, the Church Commissioners’ manorial mineral ownership extends to approximately 300,000 acres of severed minerals across various parts of the country.
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The Church Commissioners are a charity, with a duty to protect charitable assets for the benefit of their beneficiaries. As a result of the change in the law relating to manorial rights affected by the Land Registration Act 2002, the Church Commissioners undertook a major programme of registration of their manorial minerals at the Land Registry, in order to protect the ownership of those minerals for the future. This registration programme took place over a period of 6 years, and involved considerable resource and legal costs, before being successfully completed in time to meet the deadline of 13 October 2013 set by the Land Registration Act 2002.The Church Commissioners did not take steps to protect manorial rights other than their mineral interests, as they took the view that the cost of registration would have been disproportionate to the value of the rights.