Definition and Legal Nature of Mining Property
Das Mining Property is a specific legal concept established under German law in the field of mining law. It constitutes an independent, property-equivalent legal position that is classified between ownership of land (real property) and the right to use mineral resources. Mining property grants its holder the exclusive right to explore for and extract certain freely mineable mineral resources within a precisely defined area beneath the earth’s surface.
Originally, mining property was tied to the so-called mining regale and thus to the sovereign rights of the state. Today, it is subject to the provisions of the Federal Mining Act (BBergG). This special legal position is entered in the mining register of the respective local court and must be regarded separately from the ownership of land and soil.
Legal Foundations
Federal Mining Act (BBergG)
The central legal source for mining property is the Federal Mining Act (BBergG), in particular Sections 11 et seq. BBergG. This determines which mineral resources are deemed freely mineable and may therefore be subject to mining property. The Act regulates how mining property is established, transferred, encumbered, and revoked.
Further Regulations
In addition to the provisions of the BBergG, the German Civil Code (BGB), the Land Register Act (GBO), the Land Register Adjustment Act (GBBerG), and in part the property law of the respective federal state—particularly regarding mortgages and easements on mining property—are also relevant.
Content and Scope of Mining Property
Subject Matter of Mining Property
Mining property exclusively pertains to the freely mineable mineral resources designated in the Federal Mining Act, such as hard coal, crude oil, natural gas, salts, or certain ores. This sets mining property clearly apart from land ownership, which encompasses all other treasures beneath the ground unless they are expressly subject to mining law by statute.
Vertical and Horizontal Delimitation
Mining property always extends to a field located underground with defined boundaries. The delimitation is established by coordinates and documented in the so-called application file (Mutungsakte). The precise spatial determination is a prerequisite for the registration and legal existence of mining property.
Rights of the Mining Property Holder
The holder is entitled to exclusively explore, extract, and appropriate the freely mineable mineral resources located within the defined field. Furthermore, mining property can be encumbered with third-party rights, such as easements or mortgages.
Obligations of the Mining Property Holder
The holder of mining property is obligated to comply with mining regulations, in particular with respect to the protection of neighboring rights, environmental and nature conservation, and subsequent reclamation measures. The use of the field generally also requires additional permits, such as operating plans or environmental impact assessments.
Establishment and Acquisition of Mining Property
Application and Granting
The procedure for establishing mining property begins with the so-called application (submission of an application) to the competent mining authority. Subsequently, the authority examines the relevant entitlements, particularly whether the field in question is still “free,” meaning that there is no other existing mining property. If this is the case, mining property is established by means of a formal administrative act—the grant -.
Registration in the Mining Register
Following the granting, an entry is made in the mining register (mining land register), which is maintained by the local courts. Only registration provides mining property with full proprietary legal protection.
Transfer, Division, and Encumbrance
Mining property can be transferred, divided, or encumbered in accordance with the principles of property law. Possible encumbrances include, in particular, mortgages, land charges, and easements. The transfer or encumbrance always requires registration in the mining register.
Legal Relationship to Land Ownership
Mining property is independent of ownership of the land above or below which the demarcated field is located. This may result in different individuals holding the ownership of land and soil and the mining property beneath it. However, the mining property holder may need to acquire additional rights to use the land for operational purposes (e.g., rights of access, rights of way).
In case of conflict, such as encroachments on property or damage, the provisions of the BGB, BBergG, and neighbor law govern the balancing of interests.
Extinction and Termination of Mining Property
Mining property can be extinguished or terminated by several processes:
- Waiver: The holder may declare to the authority the waiver of the mining property.
- Revocation: The competent authority can revoke mining property if the statutory requirements are met, especially in the case of the revocation or withdrawal of the grant and in the event of non-use (§ 20 BBergG).
- Reversion: In certain cases, the mining property reverts to the state by operation of law (e.g. in case of non-use over a long period or loss of the prerequisites for application).
- Deletion from the Mining Register: The termination of mining property becomes legally effective through its formal deletion from the mining register.
Distinction from Other Mining Rights
Mining property is to be distinguished from other mining law positions:
- Permit, License, Mining Authorization: These rights merely grant the ability to explore or produce certain mineral resources, without conferring proprietary rights as is the case with mining property.
- Independent Mining Rights: In other legal systems, especially those of the Anglo-Saxon world, there are additional forms of mining rights, but these do not correspond to the German mining property.
Registration, Publicity, and Security of Title
For its validity, mining property is subject to registration in the mining register. This register is public and provides third parties with information about existing rights and encumbrances.
After registration, mining property enjoys extensive security of title and—similarly to property ownership—can be sold, inherited, and encumbered. It is, however, subject to mining law restrictions and the requirements of public interest.
Taxation and Fiscal Aspects
The holder of mining property is subject to special tax regulations. These include, for example, the collection of royalties, possibly property tax, as well as further fiscal charges, the exact design of which depends on the type and extent of exploitation.
Significance and Current Developments
Mining property continues to have high economic relevance in Germany, particularly in the production of energy resources, industrial minerals, and the development of renewable energy resources (e.g., deep geothermal energy). More recently, the issue of reclamation of abandoned mining fields has also gained increasing importance.
Literature and Web Links
- Federal Mining Act (BBergG) – Text of the law
- Explanations on Mining Register Law – Federal Ministry for Economic Affairs and Climate Action
- Commentary: Rony G. Zimmermann: Mining Law in Transition, 4th Edition, 2020
Notice: This article provides a comprehensive and precise explanation of the term “mining property,” covering all key statutory, substantive, and practical aspects of this legal institution in German law.
Frequently Asked Questions
Is mining property subject to registration in the land register, and how is the registration carried out?
Under German law, mining property is not entered in the conventional land register but in a special mining land register kept at the local court (§ 12 BBergG, §§ 955 et seq. BGB). The mining land register contains all rights and encumbrances relating to each mining property. It is maintained similarly to the land register, but refers exclusively to rights pertaining to mining property. Entries and changes, such as transfers, sales or encumbrances with mortgages, are made solely upon application to the mining office and are officially documented. Registration in the mining land register is constitutive for both the acquisition and encumbrance of mining property—meaning that the right is only effectively established or transferred upon entry. Thus, mining property is an independent right with its own register, separate from land ownership.
What special rights and obligations arise from mining property?
Mining property grants the owner the exclusive right to prospect for and extract certain mineral resources within a defined field (mining field). This results in a public-law obligation to operate the mine properly and to comply with safety, environmental, occupational, and health regulations according to the Federal Mining Act. The owner is also subject to reporting and notification duties, for example regarding commencement of operations, major operational changes, or cessation of extraction. The right also includes the right of access for mining operations in relation to landowners, though the interests of landowners must be taken into account according to statutory compensation rules.
What is the relationship between mining property and land ownership?
Mining property is an independent proprietary right that exists separately from land ownership. Thus, it may be held by a person other than the landowner. To exercise mining rights on third-party land, the holder of mining property must observe certain protective and compensation obligations towards the landowner. The mining property holder’s use of the land is restricted to mining-related activities in connection with the mining property; all other uses remain with the landowner. In the event of unavoidable interventions (such as subsidence or damage caused by mining activities), the law provides for compensation claims by the landowner against the mining property holder.
Is mining property transferable and how does the acquisition process work?
Mining property is transferable and thus can be sold, inherited, and encumbered, such as with mortgages or land charges (§ 11 BBergG). Acquisition generally requires a notarized transfer agreement as well as registration in the mining land register. The transfer only becomes effective upon entry in the register; mere agreement is insufficient. For the sale, approval by the competent mining authority may also be required, especially under certain conditions or official requirements.
Which official permits and procedures are required for mining activities, even if mining property exists?
Possession of mining property alone does not grant an immediate right to begin extracting mineral resources. Additional mining permits and approvals are regularly required. This includes, in particular, approval of the operating plan (§ 51 BBergG), definition of safety measures, environmental requirements, as well as, if necessary, an environmental impact assessment. Only after all required permits have been obtained may extraction and exploration actually commence. Compliance with all official requirements is monitored by the competent mining authorities; infringements may result in withdrawal of mining property or significant fines.
How does the termination of mining property take place and what legal consequences result from it?
Mining property is terminated by formal deletion from the mining land register, for example when there are no exploitable mineral resources left in the field, upon application by the entitled party, or via an administrative procedure in the event of serious breaches of obligations (§§ 19, 21 BBergG). Upon deletion, all proprietary rights and encumbrances associated with the former mining property also expire. Generally, rights to use the mineral resources revert to the state (restitution of the substance as “freely mineable mineral resources”), and the former holder of the mining property remains obligated to remediate any legacy contamination.
Are there special considerations in the taxation and valuation of mining property?
Mining property is valued and taxed similarly to property-equivalent rights, but with certain mining-specific characteristics. It is subject to property tax (property tax B), but is not assigned to every cadastral register. The value of mining property is determined by its size, earning potential, and special use possibilities of the field. Special tax rules apply to development works, decommissioning, or exploitation of mining property rights; precise individual tax evaluation is indispensable here. Transfer of mining property is, as a rule, subject to real estate transfer tax if the relevant statutory requirements are met.
