Surface Rights Analysis Chart

Below is the chart referenced in Real Property Journal Issue 2 2012 (Volume 30, No. 2) on page 11 of "A Practical Guide to Securing Surface Rights for Solar Energy Projects" by Julie Baird and Basil S. Shiber.

If there is a reservation or grant silent on surface rights and the law implies reasonable right to use the surface then there are the following mechanisms for limitation/restriction/removal of surface rights: 1. Negotiation with holder of rights to limit/ eliminate; 2. Bring action to establish abandonment of mineral interest (CC § 883.210). In this case no activity/recordation for 20 years and intent to preserve can be recorded by holder on payment of costs; 3. Bring action to limit surface rights re oil/gas mining (CCP § 772.010). In this case, cities in populous counties (LA, Orange), court can adjust rights of possession/use of surface; 4. Bring declaratory relief action re:  interests in property (CCP § 1060). In this case, it requires a concrete, existing dispute; and it should have a specific plan for use which has been rejected by mineral rights holder; 5. If for public use, acquire interests by eminent domain – pay FMV for interests. Finally, you must obtain title insurance coverage or endorsement – CLTA Form 100.29; ALTA 9 or ALTA 35.