Can My Surface Rights Prevail Over Mineral Rights Usage I Sold?
August 11, 2017
When you sell your mineral rights, it is critical that you understand the relationship between mineral rights ownership and surface ownership. The sale of mineral rights usually grants mineral owners the ability to control the surface, even if you still own that land. This could be a problem if you wish to use your land for a specific purpose and exploration or drilling could interfere.
Surface Rights and Mineral Rights Are Separate
One of the most challenging concerns in the sale of mineral rights to someone other than the landowner is the separation between surface rights and mineral rights. According to state law in Texas, if you sell your rights to another party, they gain control of the surface estate and can drill wherever necessary to extract minerals from the ground.
Even if you did not actually sell your mineral rights and another party already owned them when you became the landowner, that party has control of the surface. While this may not be much of a problem for those who own large properties with no plans to do anything on the surface, it could affect your plans to build on your own property or use it in some other way.
Can You Challenge Control of the Surface Estate?
When control of the surface becomes an issue, there is very little you can do about it unless you are able to challenge the mineral rights owner’s control in court. Mineral owners cannot affect any structures that already exist on the surface. If you had planned to build in the location in question but no structure yet exists, your chances of gaining control over that spot are minimal.
How to Maintain Partial Control of the Surface
One way you might be able to retain some control of your surface estate, even after the sale of mineral rights, is to negotiate with the buyer or whoever owns these rights. You may be able to work out an agreement that allows you to use the surface for your purposes if both parties can compromise on where exploration and drilling will take place.
The other thing you can do to protect your interest in the surface is to add certain surface damage clauses to your agreement when you sell your mineral rights. These clauses are designed to prevent drilling from causing unnecessary damage to the surface. They also prevent some uses and include location agreements stating the surface owner must approve of the drilling location as well as agreements that restrict drilling within a designated number feet of certain structures or boundaries.
Other Possible Options
Other agreements that may help you retain some surface control are specific exclusions of certain surface operations, restrictions on the use of groundwater, and land reclamation agreements to ensure the land is restored to its original condition when drilling concludes.
Although most of these options do not provide you with total control of your surface estate after you sell your mineral rights, they do give you negotiating options to have some say in what happens on the surface and where.
The best way to protect yourself from loss of surface control after the sale of mineral rights, or in the event that rights are already owned by someone else, is to understand who owns what before you buy property or decide to sell mineral rights. This way, there will be no surprises and you can plan accordingly to ensure the protective sale or lease agreement possible!
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