Who owns The Sky to the Centre of the Earth?

So, who does own the Heavens above to the Mantle below and the Earth in between?

If you are a property owner in Scotland the answer could, at least technically speaking in Latin, be yourself – or at least your proportional bit of it!

In Scotland the general rule is when you take title to a property you also have title to the land it stands on. This includes the space above and the ground below.

Scots Law has its roots in Roman Law principles and this principle is neatly encapsulated in the Latin Maxim known by lawyers as “Ad Coelum….” which is abbreviated from “Cuius est solum eius est usque ad coelum et ad infernos” The literal translation of this is “[for] whoever owns [the] soil, [it] is his all the way [up] to Heaven and [down] to Hell.”

In plain speak the principle is that the owner of a parcel of land also owns the air above and the ground below, unless of course there is a clause in the titles granting mineral rights to another party.

The issue was highlighted recently in a report for The Victoria Derbyshire Programme flagging up an issue with developers (in England) selling the land that thousands of homes are built on without the knowledge of the people who bought those houses. Apparently, a developer had sold houses on a leasehold basis (150 years) and after all of the houses had been sold had then sold the landlords interest to an Investment Company. The Investment Company collected the ground rent and also collected fees for consents to things like consent to alterations and the like. It is a process that makes property developers millions of pounds each year, but it leaves the homeowners in an uncertain position.

Differences between Scots and English Legal Systems

The story behind the headline highlights a practice that is common in England which makes distinctions between Leasehold and Freehold. We think it would be surprising if a buyers’ solicitor didn’t establish the legal position on examination of the title and report this to both the buyer and any lender they may be acting for as it could affect resaleability. Still, it does leave home-owners worried about not owning the ground their house is built on.

It is worth making the point that despite the program being a UK wide broadcast on BBC2 the same concerns do not apply in all parts of the UK particularly in Scotland. Scots Law on titles to land and related rights is a separate and distinct system.

Although residential long lease ownership is not unknown in Scotland, land is generally owned outright. Rights to what lies beneath that are retained or separated from the land would be clearly set out in the titles as a burden or condition. Modern day examples are rare but in the past a reservation of minerals such as coal and the right to work them with or without compensation was not uncommon and many old deeds held such conditions. In practice the existence of old mine workings and the potential for subsistence or slippage is probably of more concern for home owners. If the property lies in a defined mining area the selling solicitors will usually be asked to produce a mining report and these are widely available.

When Fracking infringes

In a modern day context what might be worthy of some discussion is what happens to titles where there  is no reservation of minerals and someone starts fracking right next door. All of the evidence suggests the fracking company drills straight down and then travels horizontally – and that might mean accessing shale gas in land over which they have no rights.

Fortunately, as can be seen from the UK Government map below, shale gas deposits have not been found in Roxburghshire, Selkirkshire and Berwickshire so it is not likely to be an issue for home buyers in our area of the Scottish Borders. See Scotsman article

Fracking Map of Scotland

“Whoever owns [the] soil, [it] is his all the way [up] to Heaven and [down] to Hell.”Scots Legal Maxim of Land Ownership
If you are buying in Scotland you will need a Scottish Solicitor.
If you are selling, Hastings Legal are the top-selling Solicitor Estate Agents in the Borders and we can do your legals too which gives you more control of the process.

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