In certain areas in Texas, it is common for the mineral estate to be severed from the surface estate. Mineral estates in Texas are superior (known as “dominant”) to the rights of the surface estate. See Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex. 1967). Even absent an express agreement between the mineral estate owner and the surface estate owner limiting the mineral owner’s rights to use the surface, the surface owner has some comfort regarding the right to use the surface based on the Accommodation Doctrine.
The Accommodation Doctrine: Balancing Mineral and Surface Rights
The Accommodation Doctrine provides that the owner of the mineral estate has the right to use as much of the surface and subsurface of the land as reasonably necessary to enjoy the mineral estate, but that right must be exercised with “due regard” to the surface owner’s rights. Humble Oil & Refining Co. v. West, 508 S.W.2d 812, 815 (Tex. 1974), cert. denied, 434 U.S. 875 (1977). Additionally, surface owners may use the surface of the land in any manner that is not inconsistent with the mineral owner’s use of its estate, and mineral owners may only use the surface as is reasonably necessary.
Under the Accommodation Doctrine, a mineral owner must use a reasonable alternative for its activities related to the minerals if the planned activity would impair or preclude an existing use by the surface owner. See Getty Oil v. Jones, 470 S.W.2d 618 (Tex. 1971). Even with the relative assurance provided by the Accommodation Doctrine, there are many issues associated with mineral rights and the fact that the mineral estate is the dominant estate, including, but not limited to, title insurance coverage and endorsements, affidavits of non-production, oil and gas leases and lessee rights, drilling sites, surface waivers, and no-drilling ordinances.
TREC Addendum for Reservation of Oil, Gas, and Other Minerals
The “Addendum for Reservation of Oil, Gas, and Other Minerals” promulgated by TREC addresses the reservation of the mineral estate. Paragraph A defines “Mineral Estate.” Paragraph B allows for the Seller to reserve all or an undivided interest in the Mineral Estate. Reserving the Mineral Estate means that the Seller retains the Mineral Estate. Paragraph C is where the seller reserves, or does not reserve, its surface rights to drill for minerals. Ingress is defined as the right to enter the property and egress is defined as the right to exit the property.
Ingress, Egress, and Surface Access Rights
Others may also need or have a right to ingress or egress on your property. Put simply, if the Seller retains rights of ingress and egress, the Seller can come onto the surface estate to explore the Mineral Estate. Paragraph D provides a notice requirement for Seller to disclose contact information for the mineral lease, in the event Seller does not retain ALL the Mineral Estate.
Expert Guidance for Mineral and Surface Estate Transactions
We recommend that any seller or buyer of property located in an area where the mineral estate is commonly severed from the surface estate and/or the parties want to determine if the Seller owns the minerals engage an experienced oil and gas attorney and/or a certified landman.
Sean is Co-Owner, along with Ryan and Jonathan, of Tiago Title, and serves as its President and General Counsel. He is also Managing Partner of SCJW, PLLC, a law firm specializing in real estate, corporate, and transactional matters. Sean represents real estate agents and brokers, real estate developers, private investors, entrepreneurs, and private financial institutions in both residential and commercial transactions. Make certain to contact Tioga TItle with any real estate title needs. As well when you need legal advice reach out to SCJW, PLLC
