If a policy excepts to all minerals or specifically excepts to the documents affecting the minerals, it should also contain the following exception on Schedule B:
“The right to use the surface estate for ingress and egress and any other right or privilege incident to the ownership of the mineral estate.”
Affirmative coverage may be available to insure against loss or damage caused by the use of the surface. Typically, it will be available if there is a recorded waiver of surface rights or if the subject property is located in a city that has an ordinance that completely prohibits drilling or mining. Consult local underwriting counsel for state-specific requirements.
If all minerals are excluded from coverage,
• In Schedule A, the estate or interest to be insured should be “fee simple – surface estate only,” and
• In Schedule B, the following exception should be placed:
“There is expressly excluded from coverage hereunder and the company does not insure title to oil, gas, and other minerals of every kind and character, in , on, and under the property herein described.”
Unless all minerals are excluded from coverage (as discussed above), a specific exception should be made in Schedule B for every document containing a grant, reservation, or lease of a mineral right or interest. At the end of each exception, the following language should be added:
“Title to said interest has not been investigated subsequent to the date of said instrument.”
To remove a mineral lease as an exception, require one of the following:
• A fixed term that has expired, without renewal;
• A release of the lease, executed by the lessee;
• A judicial determination that the lease has terminated; or
• If the lease has a term that continues so long as there is production, an Affidavit of Nonproduction executed by the landowner and two disinterested parties (if allowed by local underwriting practices).
Agents National Title does not insure severed mineral interests or rights. Agents National Title does not insure against loss or damage resulting from mine or drilling subsidence.
See also:
Restrictions, Easements, Minerals (ALTA 9, Comprehensive Endorsement)