Owning land does not always mean you reserve mineral rights

Q: How can it be legal for gas and oil companies to drill under my daughter's property without her permission? In my mind, that is the same as trespassing and theft.

I know they say that if enough of your neighbors sign to allow fracking, companies will have the right to go on your land and take your minerals as well. To me, that would be the same as if your neighbors allow people to hunt on their land, they would have the same right to do the same on your land even without your permission.

A: You pose an interesting question. However, especially in western states, many land deeds reserve the mineral rights, so the seller of the real estate retains those rights. What we're saying is if your daughter purchased a piece of real estate, it's likely that her purchase didn't include the mineral rights.

Your daughter should check the deed of conveyance for her title and see if the mineral rights were included or excluded. If they were excluded from the sale many years ago, she might find that her specific deed only conveyed the interest that her seller had in the property but that early last century (or sometime in the past) the original developer or owner of the land reserved the mineral rights and that those mineral rights were sold to an oil and gas company, perhaps decades ago.

If the mineral rights were sold off, the owner of the mineral rights would have the right to exercise those rights subject to your daughter's rights to use her home. In other words, the oil or gas company might not have the right to do anything on your daughter's land that would deprive her of her use, damage her home or take any action that would force her to move from the home.

But if the company is taking reasonable means to remove those minerals, and the removal is for all practical purposes invisible to her, she probably does not have a right to object.

Obviously, if your daughter has a specific issue with regard to the removal of minerals, she might have to talk to a lawyer who has more information about the mineral rights and removal laws in her state.

If it turns out that your daughter owns the mineral rights, the question then becomes whether she should be compensated by the company exploiting those minerals on her property. Frankly, mineral rights can get complicated, and a given conflict might resolved in different ways in different locations. Along with water rights, if she has a specific question, your daughter should talk to a mineral rights lawyer.

Developers have been successful over the years separating out various types of rights. For example, while it makes sense that you would be king of your castle and own the land, including what's on the land and what's below, that isn't how it generally works out. Air rights and water rights are commonly reserved when property is sold. Even then, the air rights might only be for a few hundred feet above your property. No one, other than a government, can control what happens 30,000 feet above your roofline.

Only this is true: Ownership rights are not absolute, even when it comes to the ownership of land.

Your daughter should find the deed to her property and determine if the mineral rights, or any other rights, were excluded. If they were excluded, an attorney can explain that others can and will remove those minerals from her land without getting her permission.

(Ilyce R. Glink is the author of many books on real estate and host of "Real Estate Minute" on her YouTube.com/expertrealestatetips channel. Samuel J. Tamkin is a Chicago-based real estate attorney. If you have questions, you can call her radio show toll-free (800-972-8255) any Sunday, from 11a-1p EST. Contact Ilyce through her Web site, http://www.thinkglink.com.)

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