Fee Simple - Complete Ownership
In most countries of the world all mineral resources belong to the government. This includes all valuable rocks,
minerals, oil or gas found on or within the Earth. Organizations or individuals in those countries can not
legally extract and sell any mineral commodity without first obtaining an authorization
from the government.
In the United States and a few other countries, ownership of
mineral resources was originally granted to the individuals
or organizations that owned the surface. These property owners
had both "surface rights" and "mineral rights". This complete
private ownership is known as a "fee simple estate".
Fee simple is the most basic type of ownership. The owner controls
the surface, the subsurface and the air above a property. The
owner also has the freedom to sell, lease, gift or bequest these
rights individually or entirely to others.
If we go back in time to the days before drilling and mining, real estate transactions were fee simple transfers. However,
once commercial mineral production became possible, the ways in which people own property became much more complex.
Today, the leases, sales, gifts and bequests of the past have produced a landscape where multiple people or companies have a partial ownership of or rights to many real estate parcels.
Most states have laws the govern the transfer of mineral rights from one owner to another. They also
have laws that govern mining and drilling activity. These laws vary from one state to another. If you
are considering a mineral rights transaction or have concerns about mineral extraction near your property
it is essential to understand the laws of your state. If you do not understand these laws you should
get advice from an attorney who can explain how they apply to your situation.
Surface Rights vs. Mineral Rights
"I'll pay you $100,000 for the coal beneath your property!" This type of transaction has happened many
times. The fee simple owner may not have the interest or the ability to produce the coal beneath his property but a coal
company does.
In this type of transaction the owner wants to sell the coal but retain possession and control of the surface. The coal
company wants to produce the coal but does not want to pay an additional price to acquire the buildings and the surface.
So, an agreement is made to share the property. The original owner will retain the buildings and rights to the surface,
and the coal company will acquire rights to the coal. The transaction can involve all mineral commodities (known or unknown)
that exist beneath the property, or, the transaction can be limited to a specific mineral commodity (such as "all coal") or even a specific rock
unit (such as the "Pittsburgh Coal").
Buying Mineral Rights
Buying a coal seam is much more complex than buying a car. When you buy a car you simply pay for it, file a title
transfer with the government and drive the car home. However, when mineral rights are purchased the buyer and all future mineral rights owners will have a right to exploit the property. Usually, mineral extraction will occur at some future time. Mining companies often schedule their equipment and employees years in advance. Or, the mining company might purchase the property as a future "reserve".
It is also possible that the new mineral owner has no intentions of production. They are simply buying the property as an
investment. Their goal is to sell the mineral rights to a mining company who will assume the duties of
production. Speculators who have no intent to mine purchase lots of mineral properties. They are simply attempting to be "middle men" who
acquire valuable property from individual owners and broker those properties to mining companies for higher prices.
When a company buys mineral rights it also buys the right to enter the property and remove the resource at some future time.
Removing the mineral will require disturbance or damage to the surface or subsurface of the property. When mineral rights
are sold the right to remove the resource is an essential part of the deal.
Mineral Leases and Royalties
Sometimes a mining company does not want to purchase a property
because they are uncertain of the type, amount or quality of
minerals that exist there. In these situations the mining
company will lease the mineral rights or a portion of those
rights.
A lease is an agreement that gives the mining company the right
to enter the property, conduct tests and determine if suitable
minerals exist there. To acquire this right the mining company will
pay the property owner an amount of money when the lease is signed.
This payment reserves the property for the mining company for a
specific duration of time. If the company finds suitable minerals it
may proceed to mine. If the mining company does not commence production
before the lease expires then all rights to the property and the
minerals return to the owner.
When minerals are produced from a leased property the owner is
usually paid a share of the production income. This money is
known as a "royalty payment". The amount of the royalty payment
is specified in the lease agreement. It can be a fixed amount
per ton of minerals produced or a percentage of the production value.
Other terms are also possible.
Oil and Gas Rights
Mineral rights also include the rights to any oil and natural gas that exist beneath
a property. The rights to these commodities can be sold or leased to others. In most cases, oil and gas rights are leased. The lessee is usually
uncertain if oil or gas will be found so they generally prefer to pay a small amount for a lease rather
than pay a larger amount to purchase. A lease gives the lessee a right to test the
property by drilling and other methods. If drilling discovers oil or gas of marketable quantity
and quality it may be produced directly from the exploratory well.
To entice the property owner to commit to a lease the lessee generally offers a lease payment (often called a "signing bonus").
This is an up-front payment to the owner for granting the lessee a right to explore the property
for a limited period of time (usually a few months to a few years). If the lessee does not explore or explores and does not find
marketable oil or gas then the lease expires and the lessee has no further rights.
If the lessee finds oil or gas and begins production, a regular stream of royalty payments usually keeps the terms of the lease in force.
In addition to a signing bonus, most lease agreements require the lessee to pay the owner a share
of the value of produced oil or gas. The customary royalty percentage is 12.5 percent or 1/8
of the value of the oil or gas at the wellhead. Some states have laws that require the owner be
paid a minimum royalty (often 12.5 percent). However, owners who have highly desirable properties and
highly developed negotiating skills can sometimes get 15 percent, 20 percent, 25 percent or more.
When oil or natural gas is produced the royalty payments can greatly exceed the amounts
paid as a signing bonus. (Royalty estimation tool).
Oil and Gas Unitization
Below the surface, oil and gas have the ability to move through the rock. They can travel
through tiny pore spaces - such as between the grains of sand in sandstone or through the
tiny openings created by fractures. This mobility allows a well to drain oil or gas from adjacent lands.
So, a well drilled on your land could drain gas from a neighbor's land if the well was drilled
sufficiently close to the boundary.
Some states have recognized the ability of oil and gas to cross property boundaries underground.
These states have produced regulations that govern the fair sharing of oil and gas royalties.
These states generally require drilling companies to specify how oil and gas royalties will be shared
among adjacent property owners when a permit for drilling is filed. The proposed sharing of royalties will
be based upon what is known about the geometry of the oil or gas reservoir compared to the geometry of property ownership
at the surface. This procedure is known as "unitization".
Some states do not have rules for unitization of oil and gas royalties. Other states have
them but only for wells that produce from certain areas or from certain depths. These rules can play a critical role
in a leasing or resource development strategy. Some people tell stories about landmen saying "Lease to
me now or we will drill your neighbor's land and drain your gas without paying you a cent." In
some situations, an absence of state regulations allows this to occur.
If you are contacted about leasing your mineral rights you should contact an attorney for advice on how the laws of your state will apply to your property.
Mineral Rights Negotiations
In any mineral rights negotiation, your knowledge and skill can double your income or cost you a deal.
If you do not have these skills and knowledge the fee paid to an attorney or other mineral property
professional for assistance can be small in comparison to the potentially greater yield.
In addition to financial matters, a lease or sales contract can do more than simply specify the
amounts paid to the owner. It can also contain language that protects the owner's
property and way of life while exploration, mining, drilling and production take place. The contract
can set guidelines that protect the owner's buildings, roads, livestock, crops and other assets. It
can also reserve portions of the property that will not be disturbed during exploration, mining,
drilling and production.
In most transactions the lessee is the one who prepares a contract for signature. If the owner signs without getting professional advice,
the rights conveyed to the lessee might be greater than the owner wants to give away. Any owner who does
not have knowledge or experience with mineral rights transactions should seek advice or representation from
an attorney or mineral property professional. Lessees will often accept significant revisions to what is contained in their standard lease or sales contract.
Disagreements During Extraction
Disputes between the mineral rights owner and the surface rights owner often arise at the time of mineral extraction.
These activities can require use of the surface and damage the surface owner's enjoyment of the property. Here is where the
wording of the mineral rights agreement or lease agreement becomes very important. The agreement may give the mineral owner
the right to extract the mineral at any time, using any methods and without compensation or regard for the surface owner.
This is why legal assistance should be obtained when selling or leasing mineral rights.
When purchasing
surface rights it is a good idea to carefully examine the wording of any mineral rights agreements that apply to the propety. These could
grant significant liberties to the mineral owner at the time of extraction. Although you were not involved
in the transaction that sold the mineral rights from the
property, you will nevertheless be bound by that contract. When you buy a property
you buy both its assets and its liabilities. Hire an attorney who can do the necessary research and educate you about what you are buying.
When mineral rights are being sold or leased, the parties involved in the transaction should be in full agreement on how
extraction will occur, what reclamation will be done and who is responsible for anticipated problems. Most states have mining
laws and regulations that limit the mining company's actions during the extraction process and require reclamation. However, these
laws might not meet the surface owner's expectations. To avoid problems these matters should be addressed in the contract at the
time of sale. Again, the property owner should have an attorney who can research, negotiate, educate and ensure that the contract
is appropriate.
Delayed Damage to the Surface
Damage to the surface can be delayed. Subsidence of underground works or settlement of surface mined
areas might not occur or be detected until decades after mining is completed. The owner of a fee simple estate
should consider these facts before entering into a mineral rights sale or lease agreement. The consequences
of mineral extraction will be passed on to heirs and all subsequent owners of the property. It is not uncommon for
undermined properties to show no signs of subsidence for decades after mining is completed. Then, cracks and settlement
begin to appear. In this situation the mining company may be long defunct and its owners long dead. There is no one to
hold responsible - even if repair of any damage was written into the lease or sales agreement.
Damage to Aquifers
Many households in areas where mining or drilling takes place are outside of the service of public water supplies.
These property owners rely on water wells for the production of their water. When underground mining occurs beneath a
property some subsidence and settlement should be expected. If the mine
is below the aquifer tapped by the well, subsidence of the mine could damage the aquifer, causing its water to drain
into deeper rock units. This can cause a temporary or permanent loss of the water supply.
The value of a rural property without a water supply is a lot lower than the same property with a water supply.
Buying Surface Property
When buying property in areas of potential or historic mineral development, a buyer should determine if a fee
simple estate is being purchased or if ownership will be shared with others. Mineral rights transactions are normally a
matter of public record and copies of deeds or other agreements are filed at a government office. Real estate
buyers should ask the seller to specify what rights are being conveyed and have an attorney confirm that the seller
owns what is being sold. In many areas the sale of
mineral rights are recorded in the government record in a different deed book or database than the sale of surface
property. This means that the deed to the surface property might not mention mineral rights that have
been sold away. In areas of historic or potential mining activity the buyer of a property should have an attorney
who can do this research and confirm what is being purchased. This can prevent future surprises and problems.
State and Local Laws Always Apply
Most states have laws that regulate mining and drilling activity. There are also laws that regulate the sale
of surface and mineral property. These laws are meant to protect the environment and all parties involved in property transactions.
These laws are the only protection available to buyers or sellers on issues that are not specifically addressed in the mineral
transaction agreement.
Although mineral rights laws are similar from state to state, small
variations can make an enormous difference when applied to individual
transactions. In addition, mining and oil and gas regulations can vary significantly from one state
to another. These can also have an enormous difference when applied to individual transactions. Each transaction is unique
and should be carefully considered before any permanent agreement is made.
What Qualifies as a "Mineral"?
The word "mineral" is used in a variety of contexts. Generally, ores of metals, coal, oil, natural gas, gemstones, dimension
stone, construction aggregate, salt and other materials extracted from the ground are considered to be minerals. However,
there is no definition of "mineral" that applies in every situation and what is considered to be a "mineral"
can vary from state to state.
What Kind of Money Are We Talking About?
The amounts of money that change hands in mineral property transactions can be huge in comparision with the average person's financial experience.
The total yield (lease + royalties) or mineral sale price can often exceed the value of the surface rights. Let's consider two examples:
Example A: A 100 acre property is completely underlain by a coal seam that is eight feet thick. The owner agrees to let a mining company
remove the coal for a royalty of $3 per ton that will be paid upon extraction. Assuming a 90% coal recovery rate of 90% the owner
would be paid nearly $4 million.
Example B: A 100 acre property is drilled for natural gas and the royalties will be shared by owners of a 640 acre unit
that immediately surround the well. The property owner is to receive a 12.5% royalty based upon the wellhead value of the gas which at the time
of production is $8 per thousand cubic feet. Assuming an average well production rate of 2 million cubic feet of gas per day throuthout
the calendar year the property owner would be paid over $100,000 dollars for one year of gas production.
Three Bottom Lines
1) Get professional assistance: Mineral rights and mineral lease transactions involve large amounts of money and are very complex. This article is
intended to be no more than a brief introduction. If you are contacted about leasing or selling your mineral rights you should promptly get advice from an attorney who has expertise in mineral transactions
and the laws of your state. If you do not have an attorney
you can contact the local Bar Association for guidance.
2) The surface owner has rights: In general, the purpose of a lease or a purchase contract is to convey the rights of exploration and production
to a mineral development company. However, the owner of the surface also has some rights. Basic rights of the surface owner are provided
by state laws, however, every surface owner should decide if stronger protections are needed. The only way to preserve
them is to be sure that the contract contains adequate language to protect crops, livestock, buildings, personal
property, access and any other desires during the duration of a lease or permanently in the case of a sale.
3) Buyers and sellers beware: If you want a good financial outcome and protection for your property during and after mineral production
it is up to you and your attorney to be sure that you have a good contract.
Knowledge and negotiating skills are what will determine the success of your deal. If you don't have these you are taking a huge risk.
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Local Mineral, Oil and Gas Information
The websites below contain descriptive information about mineral mining and production in various U.S. states and Canadian provinces. |
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What Might Be in Your Deed
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The language below is quoted directly from the deed of a property owned by the author.
This same language also appears on the Certificate of Title.
"Excepting and Reserving, thereout and therefrom, all the nine-foot vein of
coal, iron and other minerals, together with appurtenant mining rights, as described in deed from
James B. Wiggins, et ux, to Jasper M. Thompson, dated December 17, 1885, and of record in the
aforesaid Recorder's Office of in Deed Book 66, page 157."
In 1885, "the nine-foot vein" was a description used for what is now known as the "Pittsburgh Coal Seam". This language conveyed ownership of the Pittsburgh Coal and other minerals from James B. Wiggins to Jasper M. Thompson. Jasper Thompson also received rights to mine the property. It was a sale that severed mineral rights from a fee simple property.
The mineral rights transaction was done in 1885. Since then the surface property, originally owned by James Wiggins, has been subdivided many times and now is in the hands of many owners. None of those surface owners have any claim to the minerals sold to Jasper Thompson. All of them should realize that the Pittsburgh Coal has been deep mined in the area of their property. |
The Marcellus Shale is the target of many gas wells in Pennsylvania. In some parts of the state it is immediately above the Onondaga Limestone. Here is a quote from the Pennsylvania Department of Environmental Protection website that explains the siginficance:
"Your oil or gas could be produced or captured from a well outside your property tract boundaries. In fact, your only protection is if your oil or gas property is subject to the Oil and Gas Conservation Law, 58 P.S. § 401.1 et seq. If so, the gas on your property could be included in a unitization or pooling order issued by the Commonwealth at the behest of a producer on a neighboring tract. That well operator would then have to pay you a production royalty based on your prorated share of the production from the well, depending on how much of your tract was deemed to be contributing to the well's pool. This law applies to oil or gas wells that penetrate the Onondaga horizon and are more than 3,800 feet deep.
Image by: Robert Milici and Christopher Swezey, 2006, Assessment of Appalachian Basin Oil and Gas Resources: Devonian Shale–Middle and Upper Paleozoic Total Petroleum System. Open-File Report Series 2006-1237. United States Geological Survey.
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