deed language

We were approached by a land management rep in PA with an interesting dilemma. One parcel of the land we own (and they want gas out of) has an ambiguous wording on the deed pertaining to gas rights. Where typically the wording would say "excepting and reserving" the word RESERVING is missing. The gas company is unsure of who owns the rights and is reaching out to both parties - seller and landowner (us) to try to resolve. While we have not yet heard any outcome from meeting with other party we are curious if anyone thinks we have a case here...apparently the gas company is unwilling to choose a side.
Thanks for your input

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Permalink Reply by rmc on September 6, 2016 at 6:12am
I know people get tired of hearing it but you need a good attorney.
I am by no means an expert at anything.
From what I have been told it's the intent of the language in a deed mistakes or typos will not change the intent of the paragraph.
Hopefully someone with a lot more knowledge will chime in.
Permalink Reply by Nancy Mosley on September 6, 2016 at 7:53am
Agree on the attorney. Do you have the title traced back to where the gas rights were severed (separated)? It might have been many years ago. It would help to compare language on the various deeds over the years.
Permalink Reply by salgal on September 6, 2016 at 8:05am

The rep had the deed prior to this one and there was no mention of gas rights.  He was asking us what our recollection might have been at the time of sale and did we believe us or previous owner had rights?

He also mentioned the intent of the language.  I told him the previous owner will obviously claim intent....why wouldn't they?  

I suppose there is an outside chance we may go 50/50... worst case we still have land lease...I guess I am hopeful but not unrealistic.

Rep said they don't very often come across cases like this.  

Permalink Reply by Nancy Mosley on September 6, 2016 at 8:16am
Sometimes a property is transferred several times and the gas rights get retained early on, but not mentioned again for awhile. Is there any way you can go to the county courthouse and trace this back? I have read where they recommend going back to the 1860s when oil was first discovered. To be r really safe you need a good title search and an attorney to advise.
Permalink Reply by Kyle Nuttall on September 12, 2016 at 6:19am

I'm not barred in PA, so I can't give a professional opinion on that language.  My best educated guess is that "except" will have the same effect as "except and reserve".  However, PA could have some case law on point that says otherwise.  Definitely get yourself a lawyer.  If you haven't found one already, you can give my office a call at 304-473-1403.  Ask Darla (the first person you'll talk to) for the name and phone number of the attorney up in PA that we generally refer people to.  He does exactly what I do, representing only mineral and surface owners and keeping himself out of working for the companies so he doesn't have conflicts of interest.  I haven't heard back from anybody we've referred him to, so I can't say for sure that he walks the walk, but he talks the talk.

Permalink Reply by Janice L. Hancharick on September 12, 2016 at 7:21am

Recommendations to get a lawyer are solid.  However to save a bit of $$$, consider following the advice re: going back to the courthouse.  "Rights" are recorded in deeds, taxed in old tax records, and the Orphans Court (where wills are registered in PA).  The trail is there.  Then take what you find to your lawyer.

I've personally done this to clarify old family records in McKean County, and helped others who are members of 4-County.

Permalink Reply by salgal on September 12, 2016 at 7:32am

Thank you.  We have consulted an attorney and at this point we are waiting to see what the other parties response is.  The only reason this came up is the gas rep came to us trying to determine who the rightful owner is.  There is no mention in prior deeds (according to documents the rep showed us) of OGM rights prior to the current deed we have.  

If there is a dispute to settle, he said the gas company would likely pay for the arbitration just to speed it up.

We are not expecting this will favor in our favor, but don't want to just give it away either.  I will post updates as I have them.  Thanks all for the advice.

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on September 12, 2016 at 3:18pm

Sal,

Who pays the real estate taxes on the minerals?

When you purchased the land were the minerals mentioned in the sales contract?

"Excepting" the minerals won't work in your favor if the previous owner is paying the taxes for the minerals.

I would hope that in PA if the minerals were separated, there would be two Real Estate Tax bills, one for the surface owner and one for the minerals owner. 

Permalink Reply by Educate Me on September 13, 2016 at 1:26am

Hi Ron,

In PA, if the land and minerals are separated, the minerals are not taxed.

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on September 14, 2016 at 3:31am

EM,

      That needs to change, why should We The People pay Real Estate Taxes while coal and oil people who stripped much of PA of their minerals over the past 150 years get a free ride.

If you can get a bill passed to require the minerals to be taxed, then those who are sitting on those minerals will be forced to return them to the surface owner if they can't make the payments. It's only fair.

In WV there's a Land and Mineral Tax listed if the minerals have been separated.

Permalink Reply by Jack Young on September 14, 2016 at 2:25pm

When oil and gas rights were taxed in Pennsylvania (until 2001) any property where the payments weren't made went up to public auction. Surface owners could buy them just like anyone else, but oddly very few did.

Permalink Reply by John D Kerr on September 13, 2016 at 7:46am

You need to spell out the entirety of the "exception" language. O&G RIGHTS? Royalty? or both? or some combination?  Exceptions are usually referred to as belonging to rights outstanding in third party.

The intent of the parties could be explained by which party leased the tract or if leased by third party?

If leased existed, held by rental or held by production, prior to the deed it is improbable that the Grantor would not "reserve" as a minimum the royalty.  In any case, the O&G operator has no dog in the fight and will just escrow any royalty. Arbitration appears the best course in this conundrum. The lawyers always win!

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