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legal MINERAL, OIL AND GAS RIGHTS

Who owns the mineral rights on your property? Minerals in place underneath the surface of the earth, including oil and gas, can be owned separately from the surface of the property. So what does that mean to buyers and sellers? BY: WILL MARTIN | GENERAL COUNSEL Minerals and mining rights can be created and transferred separately from the surface rights, and those mineral rights constitute a separate and distinct property interest. Confusing? Maybe a bit. Let's break down the situation.

Who owns what? The owner of the mineral rights typically has the authority to use the surface of the property in such ways and to such an extent as is reasonably necessary to obtain the minerals under the ground. Therefore, unless otherwise agreed upon, the mineral and gas rights owner may enter onto the land to explore for production, construct roads to the drill site, build pipelines, storage tanks, power stations and other structures and perform other activities consistent with the owner’s right to exercise its oil and gas rights. A buyer should understand fully what, if any, rights are severed from a property the buyer seeks to purchase. 8  INSIGHT • May 2017

On the other hand, a landowner or seller should understand their rights and obligations before entering into any agreement transferring mineral, oil or gas rights to their property.

North Carolina's take North Carolina law now requires most sellers of residential property, including builders and sellers of new construction, to provide a Mineral and Oil and Gas Rights Mandatory Disclosure Statement (available on the N.C. Real Estate Commission's website) to interested buyers before they make an offer. The seller’s representations regarding the severance of mineral, oil and/ or gas rights are based upon the seller’s actual knowledge and not the representations of any real estate agent engaged by the seller or buyer. The owners of some residential properties are not required to provide a Mineral and Oil and Gas Rights

Mandatory Disclosure Statement, including, but not limited to, owners of vacant real estate (i.e., with no residential dwelling) and lenders that own property acquired after foreclosing on their loans. The standard contract form used in many residential real estate sales in N.C. is the Offer to Purchase and Contract (form 2-T), which is jointlyapproved by NC REALTORS® and the N.C. Bar Association. The contract makes it clear that a buyer’s receipt of a Mineral and Oil and Gas Rights Mandatory Disclosure Statement does not modify or limit the obligations of the seller under the contract to provide “good title” to the property except as may be assumed or specifically approved by the buyer in writing.

When to get legal advice The severance of mineral, oil or gas rights affects the title to the property. Discovering and rendering opinions on

Insight | May 2017  

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