Search Site
Menu
Office Buildings vs. Oil Wells

For several years now, The Woodlands, Texas has been booming for real estate in general and for commercial development in particular.  Even before that time it was an active area for companies exploring and producing oil and gas.  This combination can cause commercial developers significant issues not typically encountered elsewhere.

In the state of Texas, mineral ownership is referred to as the “dominant estate” with surface ownership conversely the “servient estate”.  What this translates to as a default for property ownership is that the mineral owner has a right to utilize as much of the surface as reasonably necessary to explore for and develop the minerals.

Fortunately Texas does provide some protections for a surface owner, including some municipal and statutory ordinances and with the most heavily debated protection being in the form of The Accommodation Doctrine.  The Accommodation Doctrine first came into existence in a 1971 lawsuit and, despite multiple legal cases attempting to solidify its application, has generally been narrowly defined and difficult for surface owners to use to their benefit.  Recently, in 2013 the Texas Supreme Court re-visited this doctrine resulting in only slight clarifications.

Essentially under the current interpretation of the Accommodation Doctrine, the surface owner must provide evidence that (1) the mineral owner’s use completely impairs the existing surface use and (2) there is no reasonable, alternate method for the mineral owner to access the minerals and still permit the existing surface use.  Unfortunately, for commercial developers purchasing an empty tract without an established “existing use”, there is no protection from the Accommodation Doctrine.  In addition, it has become the burden of the surface owner to prove up these arguments in order to have the protection of The Accommodation Doctrine.

Fortunately, commercial developers performing due diligence at the time of purchase have several options that provide a more solid solution than later reliance on the Accommodation Doctrine.  These options include securing Surface Waivers from the mineral estate owner and/or specific title policy endorsements which insure against the risk of surface damage by a mineral estate owner.  Completing proper title due diligence costs a tiny fraction of the purchase price for a multi-million dollar development and can mean a huge difference in the outcome of a successful development.

Mineral rights in Texas can present unique issues for commercial developers. Understanding the scope of the mineral owner’s rights to use the surface estate and taking the actions necessary to mitigate the potential risks should be part of every developer’s due diligence activities.

Wendy Lambie

Phone Number: 281-367-1222

Fax Number: 281-210-1361

[email protected]

Leave a Reply

Your email address will not be published. Required fields are marked *

Contact a Dedicated Texas Business Lawyer To Schedule a Consultation
Call 281-367-1222 or contact us online to schedule a meeting.

Strong In Action

  • Spring 2019

    The Strong Firm represents borrower in $42.3 million HUD construction loan for multifamily real estate development in Walton County, Florida.

    Read More
  • Spring 2019

    The Strong Firm acts as legal counsel for borrower in $32.1 million HUD construction loan for multifamily real estate development in Conroe, Texas.

    Read More
  • Spring 2019

    The Strong Firm aids borrower in $31.7 million HUD construction loan for multifamily real estate development in Nueces County, Texas.

    Read More
  • Spring 2019

    The Strong Firm represents borrower in the refinancing of a $3.57 million commercial mortgage-backed security for a commercial office facility in Montgomery County, Texas.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  • Peer Rated 2019 Award

Recent Blog Posts

2019 Legislative Update – Texas POA Laws

In odd numbered years, Texas property owners associations (POAs) must consider any new laws affecting POAs that became effective following the Texas legislative session earlier that year. For 2019, a few such laws recently went into effect specific to residential POAs (but excluding condominium associations). HOUSE BILL 234 – Protection of
Read More
2019 Legislative Update – Texas POA Laws

Wrapping Up a Decade: Meaningful New Year’s Resolutions

As 2019 comes to a close, it’s a good opportunity to reflect on what we’ve accomplished and make resolutions for what we hope to do in 2020. I have never been a fan of New Year’s resolutions as they often seem like short-term, immeasurable goals. Things like “I am going
Read More
Wrapping Up a Decade: Meaningful New Year’s Resolutions

Not Worth the Paper It’s Written On

We have all heard the saying that something is “not worth the paper it is written on.”  This is usually said about a contract that is unenforceable or even if enforceable, it may have no value because the party has no ability to pay or perform under the contract.  Many
Read More
Not Worth the Paper It’s Written On

“So…What Happens to My Bitcoin When I Die?” Modern Estate Planning for Digital Assets and Cryptocurrencies

Millennials have complicated everything. Socializing in person wasn’t enough, so they created Facebook. Dollars weren’t enough, so they created Bitcoin. Every new app, technology or cryptocurrency brings with it more uncertainty legal uncertainty around these digital assets. Are they currency? Are they property? Can they be gifted? Can they be
Read More
“So…What Happens to My Bitcoin When I Die?” Modern Estate Planning for Digital Assets and Cryptocurrencies
  • Video Vault


    Watch videos done by our legal team to gain a better understanding of your legal needs. Our lawyers give video insight into areas such as Real Estate, Business Law, Mergers & Acquisitions and much more.

Pay Retainer Online

Use our easy-to-use and secure online payment feature.
We accept all major credit cards.

Pay Your Retainer

Contact us

Quick Contact Form