The House of Commons Justice Committee has published its Fifth Report of the current session on Manorial Rights.
As we mentioned in an earlier post, manorial rights can include rights to mines and some minerals, sporting rights such as hunting, shooting and fishing, and rights to hold fairs and markets. They were retained by lords of the manor in England and Wales when land became freehold in the early 20th century; and though, in the past, they were not required to be detailed on the register of title they remained overriding and binding on owners of affected land whether they knew about them or not. The issue was the subject of a Westminster Hall debate entitled Manorial Rights (England and Wales) on 15 Jan 2014 c 329WH.
The Land Registration Act 2002 imposed an October 2013 deadline for registering manorial rights (and a similar deadline for the registration of chancel repair liability which, it should be emphasised, is not a manorial right). Around 90,000 claims to manorial rights were registered in the year preceding the deadline: as a result of which many landowners discovered for the first time that their properties were subject to third-party manorial rights and the Justice Committee received many representations on the issue.
The Church Commissioners have a major interest. As they explained in evidence to the Committee:
“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.”
During the course of the inquiry the Committee heard about problems with the registration process, Land Registry notifications to landowners and the use of unilateral notices to register manorial rights. The Committee believes that the burden of proof of the validity of claims falls disproportionately on the landowner; however, it received little evidence of the negative impact upon landowners of the exercise of manorial rights and considerable evidence against abolition. Those opposed to abolition cited the economic value that some manorial rights may still have in certain cases.
Abolition would also have human rights implications: under Article 1 of Protocol 1 ECHR in relation to deprivation of possessions and property and consequential compensation issues because some manorial rights holders had spent significant sums of money on researching and protecting their rights in accordance with the 2002 Act.
The Committee also believes that there are some obvious improvements that could be made to the existing process of registration, not least in removing the use of unilateral notices as the primary means by which such rights should be registered and thus shifting the burden of proof towards those claiming manorial right.
Christopher Jessel, formerly of Farrer & Co, suggested that with regard to access for fracking
“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 [he] cannot bring trespass proceedings” .
Furthermore, Lord Faulks told the Committee that the Infrastructure Bill [Lords] currently awaiting report stage and third reading in the Commons on 26 January would, subject to further amendment, contain provisions related to the extraction of shale gas that were likely to provide further clarity to the situation .
However, what the Committee has not done is to make any recommendation on whether or not manorial rights should be abolished. The Committee points out that it was never its intention to pass judgment on the future of manorial rights; instead, its Report proposes improvements to the existing process of registration and recommends a review by the Law Commission of the following issues, either as part of a future programme of law reform or at the specific request of Government:
- whether the law related to manorial rights should be changed;
- whether all or some categories should be abolished; and
- how legislation could appropriately address compensation and human rights issues in such an event.
Cite this article as: Frank Cranmer & David Pocklington, “Manorial rights: Justice Committee report” in Law & Religion UK, 22 January 2015, http://www.lawandreligionuk.com/2015/01/22/manorial-rights-justice-committee-report/