LEGAL FRAMEWORK, SURFACE USE CONFLICTS, AND AGENT RESPONSIBILITIES
In Texas, it is well established that the mineral estate may be severed from the surface estate. This principle allows a property’s mineral rights to be owned separately from the land’s surface rights. Such severances may haveoccurred decades ago and are often not easily identifiable in modem property transactions, leading to confusion for landowners and developers alike.
I. Severance of the Mineral Estate
When a landowner holds both surface and mineral rights (i.e., unified estate), they may sever the mineral estatein two primary ways:
1. By Reservation – A seller conveys the surface estate but reserves the mineral estate in the deed. This iscommonly documented through the Texas Real Estate Commission’s (TREC) mineral reservation addendum.
2. By Conveyance – A landowner may execute a separate mineral deed transferring the mineral estate toanother party, while retaining surface ownership. Once severed, the mineral estate becomes the dominant estate under Texas law, and the surface estate is servient. This means the mineral owner retains certain implied rights to use the surface as reasonably necessary to explore for, develop, and produce minerals.
II. Surface Owner Rights and the Accommodation Doctrine
Despite the dominance of the mineral estate, Texas law limits how mineral owners may use the surface. The accommodation doctrine, established in Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971), seeks to balance the rights of both parties.
Under this doctrine, the mineral owner:
- Has the implied right to use the surface in ways reasonably necessary to develop minerals;
- Must accommodate existing surface uses if:
- The mineral operations would substantially interfere with an existing surface use; and
- There are reasonable, industry-accepted alternatives available that allow mineral production with less surface disruption.
This doctrine is especially important in urban or suburban development, where existing surface uses (such as residential subdivisions or agricultural operations) could be significantly impacted by drilling activities.
III. Practical Considerations for Landowners and Developers
Determining who owns the mineral estate is essential for:
- Evaluating development risk;
- Negotiating easements or surface use agreements;
- Understanding potential royalty opportunities;
- Protecting against unwanted surface disruption.
However, verifying mineral ownership can be time-consuming and expensive, as title insurers in Texas typically exclude mineral ownership from coverage and offer no affirmative statements on it.
Landowners may consider the following methods:
1. Request Title Research from Lessee – If an oil and gas company is leasing the property, they may have already performed a mineral title search. While not required to share it, requesting a copy is often worthwhile.
2. Review the Title Policy – While standard title policies exclude coverage on minerals, they will list any recorded oil and gas leases as exceptions, which can be an indication of prior severances.
3. Hire a Landman – Professional landmen (or landwomen) are skilled in courthouse research and can trace mineral title histories through deed records.
4. Engage a Texas Oil and Gas Attorney – A licensed attorney can review title documents, perform independent research, and render a formal title opinion regarding mineral ownership, surface use rights, and the enforceability of existing leases or rights.
IV. Legal and Development Risks
Landowners must be cautious when buying or developing raw land in Texas. Because the mineral estate is dominant, development may be impaired or disrupted by existing mineral rights holders or lease operators.
Developers should:
- Consider obtaining surface waivers or subordination agreements from mineral owners;
- Evaluate the potential need for horizontal drilling or pooling agreements that could impact property use
- Include mineral ownership inquiries in due diligence protocols;
- Negotiate express surface use restrictions or damages provisions in purchase or development agreements.
V. Conclusion
Mineral ownership in Texas is a foundational but complex aspect of real property rights. Surface owners should never assume that they own the minerals beneath their land. Without proper verification, they may find themselves subject to unforeseen drilling, exploration, or surface disruption. Whether buying land for development, agriculture, or investment, understanding who owns the mineral estate-and the rights that come with it-is critical to informed land use decisions and risk mitigation.
VI. Guidance for Real Estate Agents: Disclosures and Use of TREC Contracts
Texas real estate agents play a critical role in guiding buyers and sellers through issues related to mineral rights. Although agents cannot render legal opinions or title determinations, they must act competently within their license authority and in accordance with the Texas Real Estate Commission (TREC) rules.
A. Use of the TREC Mineral Reservation Addendum
TREC provides a promulgated form titled Addendum for Reservation of Oil, Gas and Other Minerals. This form should be used when a seller wishes to reserve all or a portion of the mineral estate as part of the transaction. It allows the parties to:
- Specify whether mineral rights are being reserved;
- Address surface waiver provisions (e.g., waiving the right to enter the surface);
Make certain to check out An Overview of Mineral Rights
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 Tiago Title with any real estate title needs. As well when you need legal advice reach out to SCJW, PLLC
