Interests and Estates in Land
Mineral rights can be complex. By law, property falls into two categories — real or personal. Real property includes land and whatever is permanently attached to land, found on it either by nature, (water, trees, or minerals) or by man (buildings, fences, bridges, roads).
Land is an inanimate thing which persons may, under the law, have different status to the land and the things attached to the land. ie. You can own the surface rights, but you sell the timber rights to farmer John for 25 years.
The nature of the status of the land is fixed by law, and are distinguished as being either a freehold estate or a non-freehold estate. Freehold means ownership without limitations to duration. Non-freehold would be like farmer John who bought timber rights, that only last 25 years.
Freehold estates include estates in fee simple, determinable or conditional fee, and life estates.
Fee Simple
(note: Don’t let the word “Fee” confuse you, it is a legal term, not a charge like a bank fee. )
Fee simple title is the highest form of estate ownership. It is free of any condition or restriction. Every estate conveyed is considered a fee simple unless expressly limited. The owner of a fee simple interest has the exclusive right of its use and sale.
So it is possible that someone owns the surface, another owns the mineral rights, another the royalties to those minerals, another the timber, etc. Each such fee simple owner has the exclusive ownership free and clear of any condition or restriction.
To contrast this case, we examine a deed in a subdivision that is burdened by a home owners association. The homeowner would not have fee simple ownership of his estate. It is burdened by the restrictions placed on his deed by the home owners association.
Surface Estate
Often referred to as surface rights. It is the ownership of the surface of the land. It implies the right that the owner may do whatever he wishes to the land as far as law permits.
Mineral Estate
Often referred to as mineral rights. The mineral estate of the land includes all unusual organic and inorganic substances forming a part of the soil which possess a useful property giving them special value. An exception would be sand, gravel, limestone, etc which are normally considered part of the surface estate as is subsurface water.
Minerals are often severed from the surface estate. Such severance is accomplished with a conveyance or reservation of the minerals in a conveyance. This conveyance or reservation includes minerals or such substances considered as minerals. This is to include such things as natural gas, as it has been often asked by bemused geologists “Is natural gas a mineral?”
Further, this conveyance or reservation includes royalties, bonuses, and rentals.
Determinable or Conditional Fee
This fee is the same as fee simple estate, but subject to an automatic termination triggered by an occurrence or act. Any estate in land may be granted with conditions or special restrictions. The non-performance of the condition, or the occurrence of the event will execute the automatic forfeiture of the estate, but until that happens, the owner enjoys the estate as if it were fee simple.
An example of a determinable fee would be the sale from A to B “so long as the Klipsh Synagogue still stands, then to C.” Another example is a mineral lease which is a determinable fee interest in the mineral estate.
The owner of a determinable fee has all the rights that a fee simple owner has, but there is always the possibility that it may be terminated. If he sells the estate, the buyer accepts the possibility of termination.
Life Estates
Where property is granted to an individual for as long as he lives, and upon his death shall pass to another party, he is the owner of a conventional life estate. He is called a life tenant of the property, with the right of possession, use and all income therefrom.
Statutory life estates are created automatically upon the death, intestate, of husband or wife; and the surviving spouse becomes a life tenant, with the right of possession, use and all income, to one third of the separate property of the deceased, with the remainder to the legal heirs of the deceased.
10 Comments
Question? You own the surface and the coal rights, but not the gas and oil rights.
The last known owner of the mineral rights on gas and oil have all died and there
is no longer anyone to pass these onto. Who then owns the mineral rights of the
oil and gas??
I can’t answer your question based on the info provided but I can give a big caution which you might not need.
Mineral rights issues vary from state to state, and in some circumstances, even by county. I’ve recently had to learn about this stuff and it can be EXTREMELY complicated.
I have found this site really helpful: http://www.mineralrightsforum.com/
Very helpful people there if you post questions.
You might look for a similar mineral rights group in your state. Might make it easier to get info more specific to your circumstances.
Good luck!
I have 4 acres of land my Dad purchased in 1978. He built his house and I purchased the property in 2004. There is a well known alleged gold mine that runs under the property. I have a natural swale on the property and in it is an opening to the mine. A short way inside the shaft, the tunnel is concreted shut so I’ve never been down the shaft. How would I go about getting mineral rights or trying to research the possibility of opening the mine?
My sister and i are heirs to minerals. We know who is doing production on 40 acres , we need to know who is on the other 960 acres of minerals and who owns them. This is production of carbondioxide gas.
Due to divorce I had to file Chapter 7. My attorney guaranteed me my mineral rights solely in my name were exempt. I find out through my own inquiries that the trustee auctioned off my rights and there were NO judgement claims at all against my account. It has been 6 months now and my attorney says “we have a very very very good chance” of getting this reversed. What is the possibility he can undo this wrong doing. He says the trustee should have never sold my rights. She sold my mineral rights two months before the deadline of the creditors filing against me so my attorney says she messed up. Is there a chance I get these back and why would it be taking this man 6 months now of telling me to be patient!!?? Thank you for your time.
how far down does surface ownership go before mineral right starts in a state like texas kenedy county
I believe when the overburden ends. In Geology, they assume 6′ as a default rule sometimes. Like in the case of gold in overburden.
So I’d ask an attorney on that if it is important.
How do i get mineral rights if excluded from my deed?
If you want the same ones, hire a landman to track down your minerals under your land and then make an offer to buy them.
Bear in mind, the rights are no longer yours at this point. You’ll have to trace them through the courthouse then try to buy them back. If I were to offer a SWAG on success rate, I’d give you less than 5% chance to buy them back.
2 Trackbacks
[...] an oil and gas data warehousing firm, maintains the world’s largest database of oil and gas mineral rights owners Including royalty owners, overriding royalty, and working interest owners. That database is well [...]
[...] an oil and gas data warehousing firm, maintains the world’s largest database of oil and gas mineral rights owners Including royalty owners, overriding royalty, and working interest owners. That database is well [...]