Colorado S.B. 14-009: Real Estate Transactions—What Rights are Included?
For years, landowners whose estates contain energy producing minerals have been dividing their estates into a separate surface estate and subterranean estate or “Mineral Estate.” In such areas, subsurface rights to minerals such as oil and natural gas are often severed from the surface estate, vesting ownership in multiple parties. These severances are different than others such as a wind energy right in that ownership of the mineral estate is severable from the surface estate, giving the owner of the mineral estate an exclusive right to the subterranean portion of the estate. Common ownership schemes for such an operation include the following:
- The owner of the undivided estate leases the mineral estate to an oil and gas company.
- The owner of the undivided estate sells the mineral estate to a party who then leases that mineral estate to an oil and gas company.
- The owner of the undivided estate sells the mineral estate to the oil and gas company.
Generally, a separate surface use agreement regulates the interaction between the owner of the surface estate, owner of the mineral estate, and leasee of the mineral estate. Such agreements commonly include conditions under which the mineral leaseholder may access the surface estate in order to access the mineral estate and whether or not compensation will be required to the surface estate owner.
Recently, with the growth of unconventional drilling technologies such as hydraulic fracturing, more landholders find themselves on land with drilling potential. Thus, more landowners are severing mineral rights to property in more densely populated and developed areas, which has the potential of creating uncertainty for a purchaser of real property.
To address this issue, the Colorado State Legislature recently passed Senate Bill 14-009. The Bill adds an additional disclosure requirement to the list of disclosures already required for conveyances of real property. This new disclosure requires a seller to provide information to a buyer regarding any potential split in ownership between the land and mineral estates. More specifically, in each contract for the sale of real property the seller must disclose the following:
- That the surface and mineral estate may be owned separately;
- Transfer of the surface estate may not include the mineral estate;
- Third parties may own or lease interests in oil, gas, or other minerals under the surface and may enter and use the surface estate to access the mineral estate (The use of the surface estate to access the mineral estate may be governed by a separate surface use agreement recorded with the county clerk and recorder); and
- The types of oil and gas activities that may occur on or adjacent to the property.
The above disclosure is intended to protect the purchaser of real property, by providing them with the information necessary to understand exactly what property rights they are acquiring when purchasing a parcel of land. By January 1, 2016 the Real Estate Commission is required to promulgate a rule regarding the above land disclosure. At that time all land subject to the real estate commission’s jurisdiction will be subject to the commission’s rule regarding disclosure. Any land not under the Real Estate Commission’s jurisdiction, will be required beginning January 1, 2016 to include, in bold typed face, a disclosure statement in any sale for real property in substantially the same form as the statutory language provided in the bill.