By Brendon DeSimone
When you buy a home, you probably assume that you own everything in and around it within the property lines. But in some parts of the country, homeowners are discovering the property they're buying does not fully include the land beneath it. For example, in Tampa Bay, Fla., a family realized at closing that their homebuilder had already signed away the rights to the land underneath their home to its own energy company. The "mineral rights" grant gave the energy company the freedom to drill, mine or explore for precious minerals beneath the home.
How is this even possible, and how can it be avoided? Who really owns the land beneath your home? Here's what you need to know.
You Probably Own the Land: Generally speaking, it's likely that you own the property underneath and around your house. Most property ownership law is based on the Latin doctrine, "For whoever owns the soil, it is theirs up to heaven and down to hell."
There can be exceptions, though. On occasion, a buyer will uncover an easement for a driveway or walkway that goes through their property. This is why it's important to carefully review contracts and disclosures.
Contract and Disclosures: A seller, be it a home builder or a homeowner, can't claim any sort of rights to the property without first disclosing those rights in the real estate contract or in some sort of disclosure statement.
Each state is different with regard to how things are disclosed. Many disclosure statements require the seller to tell the buyer whether or not someone else has laid claim to the property or if the buyer is limited to claims in the future. If the seller is unaware, or the home you're purchasing is in a state that doesn't require the seller to disclose, then you should carefully review the property's title report before signing off.
Preliminary Title Report: There can be a situation in which a seller doesn't know that someone else has laid claim to the property. For example, this could happen in the case of a resale in a newer subdivision where the current owner bought from a homebuilder directly.
Throughout the years, there have been instances when an easement, encroachment or even a small mechanic's lien sits on a title unbeknownst to the current seller. When this happens, all parties must work together to determine the best course of action. Access to the land below your home would have to be granted via a deed and, as such, it would show up on the preliminary title report.
The title report provides ownership information and acknowledges loans, deeds or trusts, easements, encroachments, unpaid property taxes or anything else that has been recorded against the property. If a homebuilder deeded mineral rights to themselves, for instance, they would have had to record that deed. If so, it stays on the title report until they and the current owner agree to take it off.
How to Avoid Last-Minute Disclosures: In Tampa Bay, unsuspecting homeowners signed over to the builder's holding company the "eternal rights to practically anything of value (found) buried underground, including gold, groundwater and gemstones," according to the Tampa Bay Times. If that weren't enough, homeowners who didn't realize they had signed over the mineral rights, or who did so at the last minute under duress, could have trouble selling their home later to wary buyers.
With any home purchase, you should give yourself enough time so that you can do your due diligence, either as a contingency to the contract or in the period leading up to the contract before you sign it.
When buyers think about due diligence, they immediately think "property inspection." And in the case of new construction, it's uncommon to do an inspection. But there is so much more to due diligence than a simple property inspection.
Never wait until the closing to discover such a big disclosure, as the unfortunate buyers in Tampa Bay experienced. It's common practice for a good listing agent or seller, in states where disclosure is required, to raise something like mineral rights as a red flag to all buyers from the get-go.
Deeding access to the land below your home isn't simply some "fine print" buried in the closing papers that could be easily overlooked. Such a disclosure would require paragraphs, if not pages, of documentation.
Best course of action: Review all documentation, disclosures and title paperwork prior to signing a real estate contract or during a due diligence period. If you're uncertain, ask your agent for help reviewing the documents or hire a real estate attorney to pore through the paperwork on your behalf.
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Brendon DeSimone is a Realtor, a nationally recognized real estate expert and author of the book "Next Generation Real Estate." His practical advice is regularly sought out by print, online and television media outlets including FOX News, CNBC, USA Today, Bloomberg, FOX Business and Forbes. An active investor himself, Brendon owns real estate around the U.S. and abroad and is licensed to sell in California and New York. Consumers often call on Brendon for advice and to help them find a real estate agent. You can follow him on Twitter or Google Plus.
Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.