What Are Surface Rights?
For citizens living in the US, land ownership comes with two types of rights; surface rights and mineral rights. The surface owner has the right to build any structure on the surface as they like, while the mineral rights owner can use the underground resources as they wish.
If it’s a unified estate, the landowner might have both surface and mineral rights to a property. On the other hand, if it is a fragmented or severed estate, then the surface rights and mineral rights might have various owners.
But what are surface rights, and what liberty do they provide their owner? Read this discussion to find out.
What Are Surface Rights?
As the name suggests, surface rights are the authority to practice any activity or build any structure on a piece of land. Similarly, a person with surface rights also owns any facilities existing on the property, including buildings, trees, plants, and a water source.
By possessing surface rights, you can quickly sell the property and transfer the title to anyone you like using a deed or a lease. However, you cannot do so if you want to sell your property for mineral extraction.
That’s because there’s a particular limitation to surface rights. As a surface rights owner, you cannot exercise your rights over whatever is beneath the surface. Unless the estate is unified and you have combined fee simple ownership of surface and mineral rights.
If you own surface rights that are severed from the mineral estate, you cannot extract the minerals yourself or allow someone else to do it, as you have no legal rights over the resources.
Nevertheless, as a surface rights owner, there are several aspects you can still control on the ground and landscape. Your rights as a surface owner include,
- Building any structures and modifying those that already exist
- Controlling farms, fields, and forests existing on your property
- Owning water bodies such as lakes and ponds in the vicinity
- Digging below the surface to some extent for facilitating septic tanks, storage tanks, and water wells.
- Selling the surface rights and ground-level structures to anyone you like
If you own the surface rights separately from the mineral rights, you cannot interfere if the other owner decides to sell his rights to an oil and gas company. However, the company will need a portion of the surface to establish a facility to extract the resources.
An oil company that agrees with the mineral rights owner under your surface property will need to set up several structures on the surface, including,
- Outdoor workstations
- Containment ponds
- Drilling rigs
They might not need your permission as a surface rights owner to extract the minerals, but they will require your consent to build these structures to facilitate the process. You can agree with the company just like the mineral rights owner and receive a one-time lump sum payment or a regular royalties payment for working on your property.
How Deep Do Surface Rights Go?
If you’re a surface rights owner but do not own the mineral rights to your property, you must wonder how deep you can dig before you violate the other person’s property. In most countries, if you own property, you only have rights to the surface, while everything beneath it belongs to the government.
However, in the US, it is legal for an owner apart from the government to hold mineral rights and exploit the resources as they like. But, even if you don’t have the mineral rights, you can dig into the earth to a certain extent to facilitate activities such as,
- Constructing buildings
- Sowing plants and trees
- Digging for wells and septic tanks
Apart from these specifications, the depth of your surface rights might depend on the area of your property. That’s why it’s a good idea to approach your local legal department to know the extent of your rights as a surface owner.
What Are Mineral Rights?
Compared to surface rights, mineral rights let the owner explore the subsurface to extract any mineral resources in the soil. While the surface owner’s rights are restricted to the land, the mineral rights owner can exercise his rights deep into the surface by,
- Exploring the subsurface oil and gas
- Granting the rights for oil and gas extraction
- Receiving benefits and royalty interest payments in exchange for his rights.
- Using a certain amount of the surface to build mineral extraction facilities
In some places, the mineral rights owners might have to give a share of the revenue they generate through oil and gas royalties to surface rights owners for the portion of land they use.
How To Protect Your Land As A Surface Rights Owner?
If you own both surface rights and mineral rights to your property, you can easily use the surface while reaping the benefits of the subsurface resources. However, if you solely own the surface rights, things can get quite complicated.
Suppose the mineral rights owner under your property allows a third-party company to explore and extract the resources. In that case, they can also inflict considerable damage on your surface. So how can you protect your property from such damage?
The best way is to negotiate a compensation package and get a share of the mineral rights owner’s revenue from the extraction company. Similarly, you can get them to agree on some clauses that protect your land from damage, including,
- Surface Damage Compensation – You can stop them from inflicting damage on any crops, timber, and pasture on the surface; otherwise, they compensate them for the potential revenue.
- No Surface Operation – You can stop the mineral rights owners and their partner companies from conducting specific actions on your property according to your choice.
- Location Approval – If you own an expansive area of land, you can specify the areas in which they can construct extraction-related structures, such as drill sites, roads, and pipeline easements.
- Water Safety – Drilling and extraction activities can harm the quality of subsurface water available on your property. You can place clauses that protect the quality of water on your land.
- Drilling limitations – If you have a structure on the surface that you want to protect, you can specify limited areas where the company can construct its drilling activities.
Surface rights can be unified or severed from a property’s mineral rights. If a single owner owns both rights, they can benefit from the land while extracting the mineral resources in the subsurface.
However, if the rights are severed, the surface owner will have to place some limitations on the mineral rights owner to protect his property. While there are many ways you can exercise your rights to protect your property from exploitation, it is best to get legal help and negotiate the rightful compensation.