Our Blog

Real Estate -Surface Rights and Mineral Rights

On most Land Titles in Alberta we see a notation like this attached to the Legal Description:

“EXCEPTING THEREOUT ALL MINES AND MINERALS AND THE RIGHT TO WORK SAME”.

If I return to my introductory Property Law courses, I can explain what this means. Land refers not only to the surface, but extends down also to the center of the earth, and up into the atmosphere. “Ad coelum et ad inferos”. This idea is called the “Heaven to Hell” concept.

An Introduction To Alberta Land Titles:

Someone who owns surface rights to land owns not only the surface but also the space above it (subject to the rights of others, such as airlines) and any sand, gravel, peat, clay or marl, which can be excavated by surface operations. However, surface rights do not include ownership of minerals. Someone who owns mineral rights to land may own one specific mineral, several specified minerals or all of the minerals (except gold and silver which, with few exceptions, are the property of the Crown). If the land described on a certificate of title is surface only, the legal description will be followed by a “mineral reservation,” a phrase such as “excepting thereout all mines and minerals”. If the title includes both surface and minerals, it will not have a mineral reservation. If the title is for minerals only, they will be named in a phrase like “all coal, petroleum and natural gas” or “all mines and minerals”.

As minerals represent a great deal of the wealth of this province, it is very important that their ownership be clearly defined. For this reason, the Land Titles Offices are required to issue mineral certificates before registering any dispositions (transfers, mortgages or leases) of mineral interests. A mineral certificate certifies precisely what minerals are owned in a specific parcel of land and by whom, on a specific date, and what mines and minerals are shown in the
disposition.

Most titles, which previously included both surface and minerals, have now been separated into “surface only” titles and “minerals only” titles.

Please contact us if you have any questions about surface and mineral rights.