I am about to short sale my home and I would like maintain the mineral rights. Can I?

My agent seems to think we can keep them but the buyer says they will come to him in the sale.
We have 90 days to sell and the first looker made the offer. The rights are not providing income but could in about a year. He knows this and thats why he wants them. Bank approved our offer as we wrote it up stating that I keep the mineral rights, but he countered with that he wanted them. Now he’s raising the issue that I shouldn’t be able to profit in the "short" sale. Realtor is having problems getting clarity in this matter as she has never done a short sale involving mineral rights.
Just for future lookers. The lender came back with the "We don’t care who gets the mineral rights"

So I offered a 70 – 30 split with the buyer which eventually was negotiated to 55 – 45 split. Phew … I knew that it was a risk to try and keep them in a short sale with a firm offer on the table, but it panned out. House is sitting on a large section of the Barnett Shale in Texas and I hated to lose out. Nasty divorce drove me to the short sale and I’ll count my blessings I got out with some of the mineral rights.

One Response to “I am about to short sale my home and I would like maintain the mineral rights. Can I?”

  1. acermill Says:

    First, you need to determine with certainty that you own the mineral rights. There are some privately owned pieces of property in this nation on which the federal government retained mineral rights when the lands were first deeded to original owners centuries ago. If this property ever went through a tax foreclosure in the past, it is also possible that the mineral rights were severed.

    Once you have made that determination, you can retain the mineral rights, but you most do so in the contract of sale and the deed. If you simply sell the house with no legal clarification, mineral rights transfer to the next owner, if they still exist in your name at the time of sale.

    If you exclude them, the buyer may walk away, and in a short sale situation, the lender involved may not allow you to retain these mineral rights, since they have to approve your short sale agreement. You are not in the driver’s seat here. What you are attempting to do is ‘short sale’ the property’ while retaining some of the value and interest in the property.