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Permalink Reply by P.G. on October 26, 2010 at 5:06

So a lessee has the right to go on the surface (to produce or look for minarals of course) to where ever he has a lease I presume unless he has agreed in the lease, not too, correct? Or would such a clause in a lease be worthless and he could still access via the surface?

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Permalink Reply by Skip Peel - Mineral Consultant on October 26, 2010 at 5:13

Yes, a lessee has right of access and use of the surface in order to develop within the bounds of the mineral code regulations if such right was provided for in a lease. And standard lease forms allow surface use even though it is also covered in the codes. To override that language, a lessor should have a "no surface use' clause in the exhibit page of their lease. If a lessor allows surface use after agreeing with a buyer of the surface not to do so, the buyer's legal recourse would be against the seller, not the lessee. A buyer might recover damages from the seller but could not stop surface use by the lessee under the terms of the lease. IANAL.

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Permalink Reply by P.G. on October 26, 2010 at 5:34

Even if a seller had no surface use rights (remember he/she gave that right away) to lease, How could the lease be valid without the "no surface use" clause?
How could a lessee claim to have that right if it wasn't obtained from the rightful owner?

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Permalink Reply by Skip Peel - Mineral Consultant on October 26, 2010 at 7:49

P.G. this ain't that hard and I'm getting tired of stating the same facts repeatedly. The Mineral Estate Has Precedence Over The Surface Estate. And When That Mineral Estate Is Subject To The Terms Of A Lease, The Lease Language Rules. If Surface Use Is Not Expressly Prohibited, The Lessee Has The Right To Use The Surface Under The Regulations Of The Mineral Code In Order To Develop The Minerals. It matters not one bit if the surface is owned by a party that is not the lessor. This has been litigated many times and the legal precedent is firmly established. Of course there are attorneys that would take such a case if a surface owner was adamant. However the outcome would be a forgone conclusion.

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Permalink Reply by HMI on October 26, 2010 at 8:21

(Chuckle) ... Awww Skip, thanks for being a good sport. We all appreciate your insight. I think maybe some of the hashing and rehashing of the same question comes from some disbelief that the mineral servitude can trump the real estate contract - though it apparently does. As a seller, that makes me feel much better that the buyer cannot tie up the surface and prevent development of the minerals. That said, I'm close with the buyer and his family and would do my best to look after their interests in the future. If other arrangements could be made to where my old surface didn't have to be used that would be my preference (and theirs), but if we absolutely needed it to tap the minerals and keep our mineral interest, then I'd have to exercise that right and the best possible terms with the then current landowners trying to maintain good feelings and still accomplish the task at hand.

They realize the potential for this is there, just like I realize the potential is there for me to lose my rights if there is 10 years of inactivity. It's just the environment we're in.

I'm liking that Mineral Servitude and the Mineral Code though. Where can a guy get a copy of the Code?

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Permalink Reply by Skip Peel - Mineral Consultant on October 26, 2010 at 8:29

CHAPTER 4. THE MINERAL SERVITUDE

PART 1. THE NATURE OF THE MINERAL SERVITUDE

§21. Nature of mineral servitude

A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.

http://law.justia.com/louisiana/codes/2006/21/21.html

Or a hard copy from Claitor's Publishing Division in Baton Rouge.

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Permalink Reply by HMI on October 26, 2010 at 9:03

You're the man Skip. My new saying regarding minerals is going to be:
"Because Skip says so."

Appreciate it.

Permalink Reply by The_Baron on October 26, 2010 at 9:14

HMI,

You cannot forget the basic rule of real estate law. Whatever hapens first is what counts, everything after a transaction is subject to the previous transactions.

If I own the land and mineral, then lease those mineral, every single transaction afterward is subject to that lease until said lease expires.

The mineral code does allow for freedom of contract. YOu can create a mineral servitude that does not have the right to use the surface.

Now, if I sold the land with the stipulation that no surface operations can occur, but had already leased giving the right to the lessee to use the surface, then that is what is trump here. However, should that lease expire, but I still owned the minerals, I would have given up my rights to use the surface, therefore any future lease would be subject to that stipulation.

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Permalink Reply by Skip Peel - Mineral Consultant on October 26, 2010 at 9:18

Good clarification, Baron. HMI, maybe it should be because Skip, The Baron, Dion, Les B. and Two Dogs say so. In whatever combination you like.

Permalink Reply by HMI on October 26, 2010 at 9:23

Funny Skip. That's a mouthful to say. Might have to work up an acronym for that. I definitely appreciate the seasoned veterans advise here.

So basically Baron what you're saying is a servitude can be drafter with ot without surface use so long as surface use hasn't previously been granted. In the case where it has been previously been granted (as is my case in some respects) you'd essentially have to have a servitude with surface use. I don't imagine that a landowner would just "want" to come back and remove that at a future date if they had sold the land. Right?

Permalink Reply by The_Baron on October 26, 2010 at 9:30

HMI,

Once the minerals are sold, you couln't go back and amend the terms of that sale, unless both parties wanted to do so.

I should probally add, that the Real Estate Buy/Sell Agreement most likly has a clause that this sale is subject to all previous leases, covenants, rights of way, and easements... or somthing to that effect.

Permalink Reply by HMI on October 26, 2010 at 10:10

There's no reply tab down by Baron's last post so I guess I'll put it up here. To clarify Baron, I'm sellling my property, reserving the minerals, but not selling the minerals. And you're right, the Buy/Sell agreement does reference current leases but it also said that the SELLER shall waive any right to use the surface for any such reserved mineral activity or use" - which is what started this thread because at first glance that seemed to be at odds with the obligations of the lease.

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