Wind Rights for Texas Properties Up in the Air

Texas has been a major energy producer for decades, but it isn’t just oil that’s fueling production these days. Today, the Lone Star State could be nicknamed the Wind Turbine state.

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If you drive through West Texas you are bound to see gleaming, three-blade wind turbines slowly turning on the horizon. More than a decade ago, this area of the country was identified as one of the best spots for generating wind energy. At first, landowners were hesitant to put wind turbines on their property - until they realized they could make thousands a month in royalties.

Back when the oil industry was booming, the mineral rights of a land sale were important purchase points. Now in West Texas wind rights are the hot topic.

Here’s how land rights are currently categorized in Texas:

 Mineral Estates  - This includes all resources below the surface that can be developed (oil, gold, etc.).

 Surface Estates  - Everything that’s on the surface of a piece of property is part of the surface estate.

Soon there could be a new category - wind estate.

What Buyers Need to Know About Wind Rights

Because there are numerous types of property rights, that means a single tract of land can be owned by multiple people in different ways. With the addition of “wind estate” there’s one more way to split land ownership.

But wait a second - doesn’t a wind turbine sit on the surface? Turbines aren’t hovering above the ground, which makes the issue of wind estates complicated. Since there are no laws specifying wind rights, most people are leaning on mineral rights specifications as a blueprint.

Texas law states that those with mineral rights can access the property to make use of the resources they own. The mineral rights owner can also install pipelines and store equipment on the property. Another important factor is the law states that in a dispute a tie goes to the mineral rights owner.

As the state moves towards establishing wind rights laws (an issue legislators have grappled with since 2007), most real estate experts anticipate they’ll be very similar to mineral rights. But the lack of formal legislation hasn’t stopped some sellers from withholding the wind rights on land sales. They’re simply adding clauses in the sale contract stating the potentially lucrative wind rights do not convey with the property.

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Buyers that are looking in West Texas (and their agents) have to take initiative to determine whether or not wind rights will be granted with a sale. Pay particular attention to the mineral rights portion of the resale contract. Many sellers are modifying the language in the section to state that wind rights don’t convey. The deed may also be written to say something along the lines of “the seller maintains the wind rights on and above the property.” Things can get even more tricky if another person owns the mineral rights.

If buyers are unaware of a wind rights stipulation they could find themselves in court battling for full, sole use of the property and helping to establish wind rights laws in Texas.