Full question:
This is an oil and gas question. Two brothers each have 1/2 mineral interests in the same real estate. The older brother 'conveys and quit claims to the following described real estate to wit' ...'Subject to all easements, restrictions, rights of way and covenants of record or in possession.' Does the the grantee now have all minerals and real estate?
- Category: Oil Gas and Minerals
- Date:
- State: Illinois
Answer:
The answer wil depend on all the facts involved, such as whether the brothers owned only the mineral rights or the surface land as well. If they only owned mineral rights and not the surface land itself, they cannot transfer more than the mineral rights they own. We suggest you consult a local attorney who can review all the facts and documents involved.
The mineral estate is a separate interest in land that can be severed from the surface estate. The severance generally occurs in one of two ways: Either the landowner sells the minerals and retains the surface, or more commonly, the landowner sells the surface and retains the minerals. If the seller fails to reserve the minerals when selling the surface, the buyer automatically receives any mineral interest the grantor owned at the time of conveyance.
Generally, a deed transfers all rights, including mineral rights, unless they are excluded. The exclusion of the sale of mineral rights should be stated clearly and agreed upon by each party. You may see a notation to "SEE ATTACHED EXHIBIT A" and attach an Exhibit A (or other letter as needed) to the deed stating that the property is sold with all rights except for the mineral rights. Each type of mineral should be listed separately. A statement that all mineral rights are reserved by the grantor and grantor's heirs, successors, and assigns will preserve mineral rights for you and those you transfer the rights to.
For further discussion, please see:
http://www.bankrate.com/finance/real-estate/secure-mineral-rights-before-selling-home.aspx
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
