January 4th, 2022
Mineral rights are the rights to own and access natural resources like coal, oil, salt or other minerals underneath the surface of one’s real property. It is possible to sever the rights between the surface property where, for example, a house may sit, and the mineral rights beneath. In the Northeast Ohio area, landowners most frequently encounter this in the form of an oil and gas lease. Oil and gas leases allow for a drilling or energy company to access one’s land either by placing a well or pump directly on the land or by accessing the oil and gas that exists under one’s surface land via a less-direct access method such as horizontal fracking. Often, mineral rights are acquired by an entity but are abandoned or the minerals were never accessed in the first place.
There are several ways to get the mineral rights back. The first and most straightforward way is to acquire them directly from the current owner. The second is to read the lease or deed granting the mineral interest and determine whether any condition of reverter of title exists. There is also a statutory framework under which one can re-acquire mineral rights that are not currently being used.
In 1989, Ohio adopted the Dormant Mineral Act (“DMA”) as a part of the Marketable Title Act specifically to deal with old or “dormant” mineral interests. “Dormant” in this context generally means unused for 20 years. The wording of the DMA appeared to conflict with the Marketable Title Act in general and a great deal of litigation occurred over the language. The DMA was argued to be self-executing meaning that the surface owner, without action, was deemed to be the owner of any dormant mineral interest.
The Ohio Supreme Court in Corban v. Chesapeke Exploration, LLC, et al., No. 2014-0804, Slip Op. No. 2016-Ohio-5796 clarified that the MTA and DMA are not in conflict because the DMA is not self-executing. Now there is a clear path to re-acquiring dormant mineral rights. In general, a surface owner must give notice of its intent to claim abandonment to the owner of the mineral rights. If the mineral interest owner fails to preserve its interest by filing a claim to preserve its interest or does not file an affidavit proving that a savings event occurred, the surface owner may then re-acquire the mineral rights that had been severed from the surface rights.
If you have questions or concerns about the mineral rights of your real estate, the experienced attorneys at Palecek, McIlvaine, Hoffmann, and Morse can provide guidance and help restore your mineral rights.