Surface rights and mineral rights are the two types of rights that may be included in land ownership. In Louisiana, these rights are related but distinct.
When a person owns a tract of land, he or she may own everything above and below the surface (surface and mineral rights).[1] Or, the surface rights and mineral rights may be owned by separate people. It is also possible that the mineral rights will be owned by many people.
What Are Surface Rights?
Surface rights refer to the ability to control the surface of the land. A person who owns surface rights to a tract of land may build on it, plant and sell crops and timber, use the surface water, lease the land, or sell it.[2]
What Are Mineral Rights?
To understand the difference between surface rights and mineral rights, it is important to understand what minerals are. According to Louisiana law, minerals are things like oil and gas, coal, sulfur, underground water, and “other substances occurring naturally in or as a part of the soil or geological formations on or underlying the land.”[3] In Louisiana, laws regarding minerals are found in the Mineral Code.
According to the Mineral Code, fugacious minerals such as oil and gas are not owned by anyone.[4] In Louisiana, ownership of minerals only begins when they are pumped out of the ground into a tank or pipeline.[5] However, a person may own the ability to extract minerals from a tract of land.
When this person is different than the landowner, this ability is called a mineral servitude.[6] The person who owns the mineral servitude for a tract of land has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.[7]
Applying Your Rights to Leases & Royalties
Beyond the mineral servitude, the other aspects of mineral rights are leases and royalties. The landowner or owner of a mineral servitude may create a contract to lease his servitude to another party, usually an oil company, who will extract the minerals from the ground.[8] The lessor will typically receive royalty payments from the lessee.[9]
Considering Buying Land? Some Information to Consider
1. Do your research beforehand to make sure you know what it is you are purchasing.
Mineral rights have the possibility to be extremely lucrative and could be your main motivation to purchase a specific tract of land. By default, the mineral rights will be included in a sale or purchase of land. However, mineral rights cannot be included in the sale of land if they are already owned by a third party. Pay close attention to the language of the deed.
2. When mineral rights are owned by a third party, it may affect your use of the surface in the future.
Surface rights are subservient to mineral rights, which means the owner of a mineral servitude will be able to access and use the surface to extract the minerals from underneath.[10] If you would like to avoid this, make sure you are purchasing both the surface and mineral rights.
3. If you are considering selling a tract of land, you may want to keep the mineral rights.
If this is the case, make sure the deed clearly states that you are reserving all minerals or a portion of the minerals if that is what you choose. As with all contracts, the terms of the sale will be subject to negotiations.
Legal Representation
If you or someone you know is seeking legal advice regarding real estate, property, or land rights, please give us a call. Our experienced attorneys are prepared to provide advice and personalized legal representation.
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[1] La. R.S. 31:6.
[2] La. C.C. Art. 477, 482.
[3] La. R.S. 31:4.
[4] La. R.S. 31:5.
[5] La. C.C. Art. 3412.
[6] La. R.S. 31:21.
[7] La. R.S. 31:6.
[8] La. R.S. 31:114.
[9] La. R.S. 31:80.
[10] La. R.S. 31:23.
