Drillers have to get all of the co-owners (usually heirs of family property, and technically “cotenants”) to sign a lease or a pooling amendment to a lease, before they can drill. What if the driller cannot get all the co-owners to sign but the driller still wants to drill?
With the one exception noted in the next paragraph, the only strategy the driller had was to try to bring partition suits. They would buy out one of the owners, and then bring a partition suit as one co-owner to try to have the property sold on the courthouse steps or to have the unwilling owner’s interest forcibly sold to the driller. Drillers used to bring these suits all the time because it was their only possible strategy before the cotenancy statute passed in 2011.
Now days drillers generally try to use the 2018 “cotenancy” statute before/instead of trying to use partition suits. If there are seven or more co-owners, and if the driller can get co-owners that own get 75% of the interest in a mineral tract to sign leases (and maybe amendments, but maybe not), then the driller can drill. The other, unsigned 25% will be deemed to have leased and will get the best lease signed by one of those who did sign. Read our page about this “cotenancy” statute.
But if there are six or fewer cotenants, or if the driller cannot get the owners of 75% of the interest to sign leases, then the driller will try to use (or threaten to use) partition law suits because that is the only way the driller can try to get the owners of 100% of the ownership signed up to drill into the tract in question.
Some drillers try to use partition suits even if they could use the cotenancy statute! That is because in the long run it would save them money to use the partition suit. It will take a while before they can drill, but it would save them money in the long run because you will get far less money from the driller in the long run if the driller would use a partition suit against you instead of the cotenancy statute.
If the driller would succeed in using a partition suit because you do not fight it (and sometimes in some counties even if you do) you will get a chunk of money up front, but you will lose ownership of the property and you will not get future royalties. The chunk of money up front may be bigger than the signing bonus per acre you would get if you signed a lease, but since royalties pay a lot more money than the signing bonus, you will get a lot less money in the long run.
The good news is that even though drillers will sometimes try to use partition suits, we do not think that they can succeed in winning those suits if they are trying to partition mineral tracts that have been severed from ownership of the surface. That is because of a West Virginia Supreme Court case called Bowyer v. Wyckoff, Supreme Court of Appeals of West Virginia. January 26, 2017, 238 W.Va. 446, 796 S.E.2d 233. WVSORO thinks that this case interprets the current partition statute to prohibit partition cases that will deprive mineral owners of future royalties.
This is very complicated. So if you are served with a partition suit, or if you are threatened with a partition suit, you very much need to see a lawyer. This is not something you can handle successfully handle by yourself. If you are resisting signing a lease because you do not think the terms you are being offered are good enough, then having a lawyer will probably result in you being offered a better deal by the driller, and you can pay the lawyer out of that. If you do not want to sign a lease out of an opposition to drilling or for some other reason, then you may have to pay the lawyer out of your pocket. WVSORO often advises people they are better off to have a lawyer when negotiating leases and amendments etc., but it may not be necessary for some people. In this case we think having a lawyer is essential. We have a web page with lawyers who we know practice on the side of the little guy in this area of law. Or you can find one yourself — but see a lawyer. Whatever lawyer you find you may want to tell him or her that you have heard about the Bowyer case on our web site and you want your lawyer to check it out, because this is relatively new case and the lawyer you find may not even know about it. So tell him or her about it. And tell your lawyer that he or she can contact us to explain the Bowyer decision in lawyer talk.
And contact us if you have any questions.