Consulting in Mining Law is important in property negotiations

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Consulting in Mining Law is rarely used in contracts for the purchase and sale of properties, including rural properties, the extent of which (and, therefore, the probability of the existence of a deposit) is usually greater. However, the possible existence of mineral activity can substantially change the value and destination of the asset, so that the service seems relevant.


It is known that the exercise of B2B Lead mining (with the sole exception of the licensing regime [1] ) does not depend on the consent of the owner of the property where the deposit is located, as it belongs to the Union. However, this does not mean that the miner can entering other people's property in an excessive and random way, without any “satisfaction” to the land owner.

In fact, although mining is of public utility and national interest [2] and has unquestionable economic and social relevance [3] , its implementation cannot ignore property, as it is also a constitutionally guaranteed right [4] . It is commonly said that the soil belongs to the owner, and the subsoil, to the Union; This statement, however, is mistaken. Pursuant to article 1,229 of the Civil Code, “property of land encompasses that of the corresponding airspace and subsoil, in height and depths useful for its exercise”. The Union, in fact, holds control over the deposits that possibly exist in the soil or subsoil, so much so that the ores that occur on the Earth's surface (such as sand and clay) also constitute Union assets.



During the mineral research phase [5] , the owner of the property where the deposit is located has the right to receive compensation for previously identified damages and income for the occupation of the area. To this end, the miner must seek out the owner in order to sign an agreement regarding such values ​​and the method of payment. If there is no consensus, the National Mineral Agency (ANM) will send a letter to the district judge (common state court) so that he can arbitrate the values, in accordance with article 27 of the Mining Code. After this stage, the miner must deposit in court the amounts established in the sentence, and, subsequently, the owner/squatter will be summoned to allow the miner to enter the area and promote research work (there may be assistance from the local police authority in case of resistance, opposition or non-compliance with the court decision). The rent cannot exceed the maximum net income of the territorial space to be occupied; in turn, the compensation cannot exceed the market value of the occupied property [6] .