Real Estate: Texas/surface rights
QUESTION: We are trying to purchase property just out of Seguin, TX. The seller will not waiver his "surface rights" on the Oil, gas and mineral rights addendum. What does this mean? I understand mineral rights are dominate in Texas, but how can he hold surface rights also?
ANSWER: I would need to see the statement in the document to give you a more complete answer but, from strictly what I see in your question I would venture the following:
1) You would purchase the surface estate and the seller keeps the minerals,
2) The sales document states that he has the right to use the surface to access the minerals (which is understood because of the dominate estate theory)
3) You are perhaps asking the seller to expressly give up his right to the surface for drilling purposes.
If you are not asking for a prohibition similar to point #3 then this could very well be a misunderstanding. The seller is probably intending to stipulate in the sales documents that you understand that he has a right to use a "reasonable" amount of the surface estate for any future drilling activity.
From my perspective that is what the seller is asking but I very well could be absolutely wrong. You may want to provide follow-up info on this for a more complete answer.
---------- FOLLOW-UP ----------
QUESTION: The confusion is coming from the Addendum on Oil, gas and mineral form. Item C states the seller waivers or does not waiver his "surface rights". Our seller has marked the does not waiver box. We understand he already has the surface rights to explore and develop, does marking this box just reaffirm that right?
I would make sure that your understanding is correct by adding your own note to the sales contract. You will want to state that you understand that the seller has the right to explore and produce his retained minerals; but that you have the right to participate in picking of location, easements and roadways and that you ARE NOT forfeiting your right to be compensated for surface damages for location, roadways and easements.