Jason

Thank you for your comments.

When I think of mineral rights outside of Iowa, I think of Oklahoma’s title requirement to trace title back to a deed from the Choctaw or Cherokee Nations before the oil company will pay over the royalties. I’m glad we don’t have such a requirement in Iowa. But then we don’t have much oil drilling in Iowa either.

But if you want gypsum or limestone – you are in luck.

Regarding your recommendation concerning having a title standard.

Pretty much every meeting of the Title Standards Committee contains a discussion or at least a comment, we can only set a standard based on statute law or case law, not on what an attorney would like us to set to clean up an issue. We don’t set law, we state law and how to proceed to follow that law. Sometimes we have to admit, the law is unsettled or unclear. We do communicate with the ISBA Legislative Committee when we see there is need for a statute revision to clean up an issue. That then becomes another process. It may well be that there is good opportunity to have the legislature do some work in these topics being discussed.

Mark

Member ISBA Title Standards Committee

Mark V. Hanson – Attorney

2420 128th Street, Urbandale, Iowa 50323

t: 515.868.0450 m: 515.537.9128 f: 515.276.6569

e: Mark@HansonLawPC.com

HansonLawPC.com

From: <realestate-owner@iabar.org> on behalf of "Cassady, Jason" <realestate@iabar.org>
Reply-To: "realestate@iabar.org" <realestate@iabar.org>
Date: Wednesday, November 8, 2017 at 1:16 PM
To: "realestate@iabar.org" <realestate@iabar.org>
Subject: RE: [ISBA RealEstate] Mineral Rights

I wholeheartedly agree that the West Lake case is a serious problem, and cannot be ignored. However, I also think caution should be utilized in relying upon it for anything beyond its facts.

That said, I practiced in Iowa for six years and prepared thousands of title opinions during that time. I can count on one hand the number of times I encountered a mineral reservation. When we encountered them, my boss and I would treat them as exceptions to title, but not make a requirement. In one instance a client got a second opinion from another firm (due to a different issue), and that opinion required obtaining a deed from a Texas company.

For the past ten years, I have been immersed in examining title for oil companies in North Dakota and Wyoming. I have examined title to over a 100,000 acres of land from inception – including several towns. In my first month in this area of practice, I learned more about mineral ownership and mineral rights than three years of law school and six years of practice in Iowa real estate law could have ever taught me (I did not take Mineral Law at Drake, but even if I had, I suspect I still would have learned more in that month). It is just not something on most Iowa real estate practitioners’ radar (it sure wasn’t on mine). There is nothing wrong with that. I am no expert on tax sales, nor do I pretend to be. I defer to the expertise of others on that topic – and remember sending posts to this list back then on thornier issues like that where I lacked the subject matter expertise.

While Iowa law is thin on mineral ownership, other states have fleshed out lots of law. North Dakota’s law was quite thin when I started practicing this area of law, and has developed by leaps and bounds since. What I can tell you is that I have seen courts presented with an issue in a state with thin mineral law, they look at other states’ cases on the topic. They tend to be most persuaded by courts in states with similar laws/jurisprudence – which means that Texas and Oklahoma have developed most of the mineral law jurisprudence that has been adopted by courts in the rocky mountain states. I can say with great confidence that Iowa and North Dakota have very similar real estate case law holdings.

Here’s what my ten years’ experience in practicing oil and gas law tells me at a gut level – it is more likely than not that an Iowa court, if properly briefed, would treat severed mineral interests in the same way it treats a co-tenant of the entire fee. That is, possession by a co-tenant does not dispossess the other co-tenant of their rights to the property. If Brother A farms the family farm but owns it 50-50 with Brother B who lives in California, and Brother B does not step foot on the family farm after ten years, does Brother A’s “possession” result in Brother B losing his interests? I believe not. However, that would be the analogous argument in my mind to saying that the severed mineral owner’s interests are lost to possession by the surface owner after ten years. This is precisely why Iowa adopted Chapter 557C and why many states (including North Dakota) have adopted mineral lapse/dormant mineral statutes whereby unused mineral interests are forfeited and merged with the surface estate.

This brings me to why we care at all, and my example above as to why my title opinion and another attorney’s title opinion over ten years ago differed on treatment of severed mineral interests. The question is one of what constitutes marketable title. This issue has arisen time and time again over the past ten years on this very list serve. I would recommend to the title standards committee that it is probably time to address this issue in the title standards. In my humble opinion, severed minerals do not make title unmarketable, rather they are an exception to title and if the purchase agreement does not except them or carve them out (e.g., offering up full unencumbered fee simple), the buyer would have grounds to require curative from the seller or obtain concessions (just like a buyer would with a non-disclosed easement or covenant). The surface/fee owner owns from the surface to the core of the earth. The mineral owner only owns those specific minerals which exist in that fee ownership (and I’ll avoid discussing what constitutes a mineral as that is the subject of many books and much litigation). Thus, mineral ownership in the common law is accompanied by an easement for exploration and development of the minerals (including an access easement). However, because that exploration and development can result in damage to the surface/fee estate, many states have specific laws about surface damages. Even without one of these specific laws regarding surface damages, I can tell you from practice, that the oil companies I work with know full well that their actions on the surface would be tortuous against the surface owner if there is no agreement in place and if they had not paid damages (and I’m told coal and other hard mineral companies generally purchase the surface or obtain lengthy leases from surface owners). The statutes which exist in many states are designed to facilitate these agreements prior to work being done (instead of litigation and damages being awarded by a jury after the fact). Further, outside of the mineral context, in North Dakota, surface interest transactions are handled by title insurance policies. These policies simply except out the mineral interests. Title is deemed insurable, and multitudes of transactions occur around the nation with this exception.

I can tell you that even when it comes to surface, title is a mess in North Dakota. I am amazed how many older defects I see – and how many defects in the last transaction I see. This is in stark contrast to the relatively clean titles we have maintained in Iowa thanks to the prohibition on the establishment of title insurance, coupled with a reasonable and financially sound system of abstract updates, attorney title opinions, and Iowa Title Guaranty policies. If Iowa wishes to remain in this position, it must be reasonable in its approach and continually adjusting to the market. Excepting severed minerals from a title opinion (instead of requiring action) in my opinion is a reasonable approach. However, due to the reasonable disagreement within the bar on this point, I think it would be prudent to get a title standard clarifying whether severed mineral interests are a cloud on, or exception to title.

If the bar is concerned about the mineral severances and would like to see more title merged into fee simple absolute, they should request the legislature take action. If they are concerned about potential development and surface owner rights, they should request the legislature take action. In the meantime, I recommend caution. I recommend being wary of any “curative statute” not directly on point (like Chapter 557C) to “wipe out” mineral interests – and to also be wary of dismissing the possibility. I agree with many who posted last month – West Lakes has created much uncertainty in Iowa record title. Even if not reversed by the Iowa Supreme Court, assuming it applies to literally any real property interest without further analysis may be an overreaction.

Jason

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Jim Nervig
Sent: Wednesday, November 08, 2017 10:56 AM
To: realestate@iabar.org
Subject: Re: [ISBA RealEstate] Mineral Rights

Great analysis, Mr. Cassady and Mr. Hanson. Unfortunately, our Court of Appeals very much brought sections 614.17 and 614.17A into the spotlight in its recent decision in West Lakes Props. v. Greenspan Prop. Mgmt., No. 16-1463, November 27, 2017, 2017 Iowa App. LEXIS 998. In West Lakes, the Court interpreted section 614.17 to apply to invalidate a right of first refusal under circumstances where no statement of claim had been recorded within ten years from the date of recording of the instrument creating the right. The analysis in the West Lakes decision places in jeopardy any interest in real estate that may be sought to be enforced against the owner in possession of the parcel burdened by the interest. The enormous issue is how broad is the scope of the 614.17/614.17A statute of limitations under the interpretation of the Court of Appeals. The holder of the right of first refusal has filed application for further review, but I have little confidence that the Supreme Court will appreciate the enormity of the issue and grant further review.

Mr. Cassady and Mr. Hanson explained the unique law that has developed regarding mineral rights. However, it is certainly open to question whether or not the Court of Appeals would interpret mineral rights as subject to 614.17/614.17A in the same manner as rights of first refusal.

To accentuate the enormity of the issue created by the Court of Appeals, consider a 30-year real estate mortgage. The mortgage certainly establishes a lien that is an “interest” in real estate. The lien is enforceable against the “holder of record title in possession.” Therefore, within the basic terms of the statutes and the interpretation of the Court, it appears to me that the Court likely would rule that the lien of a 30-year mortgage would be rendered invalid and unenforceable after ten years from the date of recording of the mortgage, unless a statement of claim was recorded within the ten-year period. The consequences of such a ruling would be tremendous. I hope my opinion is wrong, and I ask all of you to educate me if you believe me to be wrong.

It has been mentioned many times on this list serve that there is a problem with the failure to have justices with real estate expertise appointed to our appellate courts. West Lakes may illustrate the problem. In Chipman’s Subdivision Homeowners Association v. Carney, 814 N.W.2d 622 (Iowa Ct. App. 2012), the Court of Appeals previously badly misinterpreted the Stale Uses and Reversions Act, section 614.24, by ruling that a homeowners association created by covenants to maintain private amenities was a “use restriction” that became invalid for failure to file a verified claim within 21 years after recording of the covenants. This horrible ruling was effectively overridden by a 2014 amendment to 614.24 setting forth a definition for “use restriction” that clearly excluded homeowners association covenants. The Iowa Supreme Court has been similarly mistaken in some of its past interpretations of laws affecting rights in real estate.

It appears to me that the justices of our appellate courts have an analytical deficiency in going beyond mere interpretation of basic words in a statute and looking at what exactly was the underlying legislative intent. Interpretation of statutes of limitation like sections 614.17/614.17A and 614.24 are particularly vulnerable. One needs look no further than the title of the Stale Uses and Reversions Act. The most important word is “Stale.” The obvious purpose of the Act was to get rid of “stale” use restrictions encumbering real estate—restrictions that had become obsolete with no present purpose. I cannot understand how a rational person could reach the Chipman’s decision that an on-going executory contract governing the operation of an active homeowners association was somehow a “stale” use restriction. The same goes for the West Lakes decision. Sections 614.17/614.17A appear to have been enacted for the purpose of eliminating stale interests in real estate that adversely affected marketability of title. But there is no evidence from the West Lakes opinion that the Court went past the basic words of the statute and considered the obvious legislative intent.

I hope my concerns are wrong. But if they have any validity, then we are faced with a very large problem.

Jim Nervig

Brick Gentry P.C.
6701 Westown Parkway, Suite 100
West Des Moines, Iowa 50266
Phone: 515-274-1450
Fax: 515-274-1488
jim.nervig@brickgentrylaw.com

Confidentiality Notice: The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please immediately notify the sender by return email and delete this email from your system.

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On Nov 8, 2017, at 9:43 AM, realestate@iabar.org wrote:

On its face, section 614.17 does appear to bar actions brought by holders of defunct mineral interests.
But may I second Mr. Cassady's caution. Compared to other states, Iowa's authority is very murky.

Originally only common law dealt with mining interests in general.
One early case--Beatty v. Gregory, 17 Iowa 109 (1864)--suggests that mineral *licenses* are cut off.

Chief Justice Dillon delivered what appears to be Iowa's seminal discussion of mineral rights termination:
"Whether the interest of the plaintiffs had ever been forfeited, terminated or abandoned, was one of fact for the jury, to be determined by them from the evidence under proper instructions. This question, the plaintiffs, by their instructions (all of which were refused), sought to get before the jury. And whatever may be our opinion upon the evidence, as it now stands, as to the abandonment of their right by the plaintiffs, we are clear that they had the right, under our statute and practice, to have this question distinctly submitted to, and decided by, the jury. In considering, therefore, whether the case ought to be reversed for error in the above charge, we must assume that the plaintiffs took possession with the consent of Bonson, expended money and labor on the faith of such consent, and that their right had never been forfeited or abandoned. On this assumption, it is our opinion that they would have such an interest in real estate as would entitle them to bring an action in this form to recover it, and thus be restored to their crevice or diggings. Such being our opinion, upon the general principles of justice and law, let us now take a brief view of the authorities to see whether this opinion is in harmony with adjudged cases. The general rule is, that ejectment will lie for anything of which the sheriff can deliver possession. Therefore, it may be maintained for corporeal, but not for incorporeal hereditaments. Adams on Eject., ch. 2, pp. 18, 20, and cases. As applicable to mines and mining interests, this distinction results from the above rule: a privilege to dig, not amounting to an actual demise of the mines, as an incorporeal hereditament, and, consequently, ejectment will not lie. Doe, ex dem. Hanley v. Wood, 2 B. & Ald., 724; Lord Mountjoy's Case, 4 Leon., 147; S. C., Godbolt, 17; Cheatam v. Williamson, 4 East, 469; Crocker v. Fothergill, 2 B. & Ald., 661, judgment of HOLROYD, J.; and see Wilkinson v. Proud, 11 M. & W., 33; and Stoughton v. Leigh, 1 Taunt., 402. And especially under the above authorities is this so, where such license is not exclusive and does not oust the grantor of his rights.
"But a distinction, in many cases, is drawn between an unopened and an open mine. And the books abound with cases, from a very early period, which decide that *117 ejectment will lie for mines, though another has the surface. We refer to the following: Comyn v. Kinyto, Cro. Jac., 150. In Whithingham v. Andrews, 1 Salk., 255, “it was not questioned (citing Cro. Jac., 150), that ejectment lies of a coal mine;” S. C., Carth., 277, S. P.; Comyn v. Wheatley, Noy, 121; and see Lewis v. Branthwaite, 2 B. & Ald., 437; Bainb. on Mines, 493, 494; Collier on Mines, 18 (top); Adams on Eject., 20 (marg.); Doe. ex dem. Hanley v. Wood, 2 B. & Ald., 724, and cases cited supra. Many of these cases, while holding that ejectment lies for an open mine, throw no light upon the question as to the interest in the plaintiff necessary to maintain the action. On this subject, Mr. Adams is of opinion (Eject., page 20, marg.) that “when a grant of mines is so worded as not to operate as an actual demise, but only license to dig, search for, and take metals and mineral within a certain district, it seems that a party claiming, under such a grant, and who shall open and work, and be in actual possession of, any mines, may, if ousted, maintain ejectment with respect to them; but he cannot maintain ejectment, either in respect of mines within the district” (i. e., lying within the bounds of his privilege), “which he has not opened, or which, having opened, he has abandoned.” See, also, Bainb. on Mines, 494; Collier on Mines, 18. We are satisfied that this rule is a reasonable one, and we adopt it as being the law."

Notice that the Supreme Court indicated court action would be needed to terminate a **licensee who actually operated a mine**.
But "we adopt [] as being the law" a position that an *unopened* mine claimant *may not maintain* an action against the surface owner.
Sounds rather like section 614.17...
But Beatty does not aid us in determining whether or not **ownership of an out-and-out conveyance or reservation of mineral interests**, but not used, can be terminated by operation of law.

Almost all of Iowa's extant case law dealing with severed mineral interests in land arises during the pre-WWII coal mining era.
Within this time period appears the only other decision, that I can find, dealing with abandonment or nonuser of mineral rights.
Bremhorst v. Phillips Coal Co., 202 Iowa 1251, 211 N.W. 898 (1927).
"When the minerals and the surface are owned by the same party, as is ordinarily true, the adverse possession of the surface is also an adverse possession of the minerals, but, when the ownership or possession is severed, the situation is different. See Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S. E. 485, 6 Ann. Cas. 140; Black Warrior Coal Co., v. West et al., 170 Ala. 346, 54 So. 200."

Facts in Bremhorst did not involve nonuser or abandonment. It sheds no light upon any trigger events or time passage necessary to terminate mineral rights.

Neighboring states for the most part enjoy the benefit of legislative requirements for public registration of severed mineral claims, and provisions for cutting off unused claims.
Similar to, but broader than, Code Chapter 557C.
See, for example, these references from the Northwestern Digest:
Michigan (Dormant Minerals Act, MCL sections 554.291 et seq.); Van Slooten v. Larsen, 86 Mich. App. 437, 272 N.W.2d 675 (1978), aff'd 410 Mich. 21, 299 N.W.3d 704, 16 A.L.R.4th 1005, app. dism'd 455 U.S. 901, 102 S.Ct. 1242, 71 L.Ed.2d 440.
Minnesota (Minerals Registration Act MS sections 93.52, 93.55); Contos v. Herbst, 278 N.W.2d 732, (Minn. 1979); app. dism'd Prest v. Herbst, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17
Nebraska (RRS 1943 sections 57-228 to 57-231); Monahan Cattle Co. v. Goodwin, 201 Neb. 845, 272 N.W.2d 774 (1978)
Wisconsin (WS section 700.30--now repealed, see series 893); Chicago & N.W. Transp. Co. v. Pedersen, 80 Wis.2d 566, 259 N.W.2d 316 (1977)

North Dakota's Supreme Court has rendered many decisions, notes for which support Mr. Cassady's statements.

South Dakota's Supreme Court encountered a case where a landowner filed an affidavit of possession under a marketable title statute.
The Court ruled that the affidavit *did not cut off* a severed mineral reservation, due to the filer's having failed to wait the statutorily-prescribed length of time before filing was allowed.
Tvedt v. Bork, 414 N.W.2d 11 (S.D. 1987):
"Contrary to the trial court's findings, however, the affidavit filed by Bork pursuant to SDCL 43-30-8.1 in 1981 did not have the effect of vesting Bork with the severed mineral interests. Affidavits of possession filed pursuant to this statute must also satisfy SDCL 43-30-7, which is referred to in section 8.1. According to section -7:
"No such affidavits of possession may be filed as to any lands ****before the expiration of twenty-three years from recording of deed of conveyance or other instrument of conveyance under which title is claimed;****... to any land as to which claim under the provisions of S 43-30-5 has been filed." [emphasis by the Court]
"Thus, an affidavit of possession is intended to show possession for twenty-three years from the date of recording of the original conveyance. Also SDCL 43-30-8 provides in part that, "[w]hen an affidavit has been filed and recorded as provided in Sec. 43-30-7 ... [it] shall be prima facie evidence of the facts therein stated, for the purpose of this chapter. [emphasis added]" The obvious purpose of "this chapter" is to provide some evidence of marketable title and not to transfer existing valid interests.
"Marketable title acts with provisions similar to South Dakota's protect record title holders from ancient title claims or defects if the record title holder has an unbroken chain of title starting with some "root of title". See e.g. Presbytery of Southeast Iowa v. Harris, 226 N.W.2d 232 (Iowa 1975); P. Bayse, Clearing Land Titles Secs. 171-174, 176, 182 (1970); L. Simes & C. Taylor, The Improvement of Conveyancing by Legislation 3-5 (1960); W. Barnett, Marketable Title Acts--Panacea or Pandemonium, 53 Cornell L.Q. 45, 52 (1967); R. Poulston, Legislation, Existing & Proposed, Concerning Marketability of Mineral Titles, 7 Land & Water L.Rev. 73, 75 (1972); Annotation, Construction and Effect of "Marketable Record Title" Statutes, 31 A.L.R.4th 11 (1984). In the case of mineral interests, their severance creates a separate estate and the "root title" to the mineral interests is the recorded instrument or conveyance severing the minerals. In this case, it was the deed recorded in 1968 that severed the minerals by reserving them for Tvedt's predecessors in title, his parents. See SDCL 43-28-17 (defining conveyance); Northern Pacific Ry. Co. v. Advance Realty Co., 78 N.W.2d 705 (N.D.1956). The deed reserving the minerals is then the "deed of conveyance or other instrument of conveyance under which title is claimed [to the mineral interests]," SDCL 43-30-7. The twenty-three years is measured from the date of recording of this conveyance before an affidavit of possession pursuant to sections -7, -8, and -8.1 can take effect. See Northern Pacific Ry. Co., supra; Sims & Taylor, supra at 59 (comparing and distinguishing the effect of affidavits of possession, etc., from instruments of conveyance). Even then, prima facie evidence is rebuttable. SDCL 43-30-8. Marketable title acts operate to extinguish ancient title claims and defects, and not to cut off existing interests before the running of the twenty-three year period from "root title". Therefore, Bork's filing of an affidavit pursuant to section -7, but before the running of twenty-three years from the time the minerals were severed in 1968, could not have the effect of cutting off a severed mineral interest and vesting it in Bork. Consequently, the trial court incorrectly concluded that Bork's affidavit of possession vested him with the severed mineral interests."

I see an interesting implication here--that the affidavit *might have cut off* the mineral interest *if it had been timely filed*, i.e., *after* the statutorily fixed filing-bar time had run.

All this said: We still don't know what Iowa would do.
I think that the Courts should favor marketable title and taxation of property to its full value.
Both of those public policy goals are aided by allowing termination of dormant mineral interests.
Of course, "public policy" usually provides only the weakest of arguments.

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa

----- Original Message -----
From: "Jason Cassady" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Tuesday, November 7, 2017 8:10:40 PM
Subject: RE: [ISBA RealEstate] Mineral Rights

I would be cautious about relying on 614.17 with respect to "mineral rights". While I've never researched in Iowa, in the states where I have researched it, "mineral rights" and "mineral interests" are synonymous terms, and are a group of sticks in the fee simple absolute bundle of sticks (this is often found in old case law). Indeed, if you look up "mineral right" in Black's it sends you to "mineral interest". The Iowa Supreme Court long ago recognized the right to own mineral interests and surface interests separately in fee. See Stewart v. Chadwick, 8 Clarke 463 (Iowa 1859). Mineral interests are owned in fee in their own they can be taxed, mortgaged, leased, further severed into additional subsects, and otherwise dealt with (as one would deal with real property) separately from the remaining fee simple estate.

To that end, whether 614.17 applies raises two questions in my mind, would the Iowa courts deem possession of the surface as possession of the severed mineral interests and if so, what is the purpose of Chapter 557C.

As I have posted on this list before, at least one other state's supreme court (North Dakota, which has many similar real property laws) has held that a record titleholder of the surface (or surface and part of the mineral interests) in possession does not "possess" the severed mineral interests, and thus a curative statute relying upon possession could not wipe out the severed mineral owner's interests. Thus, the curative statutes in that state did not apply. In such a vein, it is possible an Iowa court would hold that 614.17 does not apply to severed mineral interests.

Further, if 614.17 (first passed in 1951) were sufficient to "wipe out" the ownership of a mineral owner, there would have been no need for Chapter 557C to have been passed in 1991 (providing for a lapse of ownership in coal interests if not preserved of record), or for the off and on discussion on this list serve (and bills proposed in the legislature) for a similar statute for all other mineral interests. Note also that the timeframe in Chapter 557C is 20 years (not 10 years).

Accordingly, I would recommend extreme caution against relying upon 614.17 with respect to severed "mineral rights".

Jason

Jason R.S. Cassady | Attorney | Fredrikson & Byron, P.A. | 200 South Sixth Street, Suite 4000 | Minneapolis, MN 55402 | 612.492.7361 (direct phone) | 612.492.7000 (main phone) | 612.492.7077 (fax) | My Web Bio<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fredlaw.com_our-5Fpeople_jason-5Frs-5Fcassady_&d=DwIFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=EPSMjiYkoyijOVVbWbsAsFAStlsj1S5xfXW-n4RtNxM&m=9FQ4Uv5uweyIj9LoQOjmwaGN-XavhdlEtF49E62z668&s=dY1UOrTInTWrT35SHaEKJhUSGPhxt9rm-7LndJbKYQQ&e=> | Download vCard<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fredlaw.com_our-5Fpeople_jason-5Frs-5Fcassady_vcard_&d=DwIFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=EPSMjiYkoyijOVVbWbsAsFAStlsj1S5xfXW-n4RtNxM&m=9FQ4Uv5uweyIj9LoQOjmwaGN-XavhdlEtF49E62z668&s=YsRXOniu0jcgEDMmL-rvITD_Uk7x-wfEx_2EtjMgYf4&e=>
________________________________
From: realestate-owner@iabar.org [realestate-owner@iabar.org] on behalf of Andrew Mahoney [realestate@iabar.org]
Sent: Tuesday, November 07, 2017 4:13 PM
To: realestate@iabar.org
Subject: RE: [ISBA RealEstate] Mineral Rights
Ok I'll see how this code section applies, thanks all!

Andrew

From: realestate-owner@iabar.org [mailto:realestate-owner@iabar.org] On Behalf Of Jim Nervig
Sent: Tuesday, November 7, 2017 11:57 AM
To: realestate@iabar.org
Subject: Re: [ISBA RealEstate] Mineral Rights

Andrew:

Iowa Code section 614.17 provides that "[a]n action based upon a claim arising or existing prior to January 1, 1980, shall not be maintained, either at law or in equity, in any court to recover real estate in this state or to recover or establish any interest in or claim to real estate, legal or equitable, against the holder of the record title to the real estate in possession . . . unless the claimant . . . within one year after July 1, 1991, files . . . a statement in writing, which is duly acknowledged, definitely describing the real estate involved, the nature and extent of the right or interest claimed, and stating the facts upon which the claim is based." Does 614.17 apply to the facts of your case? If so, and if no statement was recorded within one year after July 1, 1991, then would the mineral rights interest be rendered unenforceable and no longer valid by the statute of limitations?

Jim Nervig

Brick Gentry P.C.
6701 Westown Parkway, Suite 100
West Des Moines, Iowa 50266
Phone: 515-274-1450
Fax: 515-274-1488
jim.nervig@brickgentrylaw.com<mailto:jim.nervig@brickgentrylaw.com>

Confidentiality Notice: The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please immediately notify the sender by return email and delete this email from your system.

Treasury Circular 230 Disclosure: To the extent this communication contains any statement regarding federal taxes, that statement was not written or intended to be used, and it cannot be used, by any person (i) as a basis for avoiding federal tax penalties that may be imposed on that person, or (ii) to promote, market or recommend to another party any transaction or matter addressed herein.

On Nov 7, 2017, at 11:30 AM, Andrew Mahoney <realestate@iabar.org<mailto:realestate@iabar.org>> wrote:

I have a client that is selling some property but it turns out that a sibling of his ancestors possessed � interest in mineral rights for the land. It appears that the mineral rights were just forgotten about and they haven't been addressed in about 40 years or so. Now the descendants of the sibling, whom the mineral rights would have passed to, all reside in Canada. We would have some difficulty contacting them to relay the situation. We might have a way (or two) of clearing up the objection but, in case the other avenue doesn't come through, I am wondering if anyone has any suggestions as to clearing title. Would a quiet title action clear that up or is there another solution someone has in mind?

Thanks everyone,

Andrew L. Mahoney
Kozlowski Law Group, LLC
314 N. 4th Street
Burlington, Iowa 52601
Ph: 319-753-6201
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