Disclosure of Subsurface Rights

The prevalence of new homes in the area over the last few years has steadily increased.  Large scale homebuilders have been swooping into the area to acquire vacant land and under market (or distressed) properties in hopes of benefiting from such steady growth.  Given the low inventory over the last few years many buyers have been rushing to execute new home contracts without proper counsel.  In some cases the homebuilder is requiring a new buyer to take title subject to the homebuilder maintaining (and reserving) an interest to all oil, gas, water, petroleum, natural gas, coal, lignite, and other minerals and hydrocarbons (i.e., Mineral Rights or Subsurface rights) found on the property.  This has long been the practice in East County but with the resurgence of new homes in the area from out of state builders it is becoming more common place in other parts of Manatee and Sarasota County.

Although generally buried in the new home purchase agreement, many times prospective buyers first find out about the homebuilder’s reservation of subsurface rights at the closing table.  Recently, the Florida legislature approved a new bill that requires disclosure of Subsurface Rights.  This bill goes into effect October 1, 2014.  The bill requires notice at the time of contracting for the sale of residential real property by a seller who has or will sever or retain any subsurface rights to such property to provide a disclosure summary within the sales contract or incorporate such notice by reference in such sales contract.  Pursuant to newly created Section 689.29, Florida Statute:


  • The disclosure must be provided at or before the execution of the contract if the seller or an affiliated or related entity has previously severed or retained, or will sever or retain, any subsurface rights or right of entry;
  • Requires that the disclosure must, among other things, be conspicuous, in boldface type and include a warning that the owner of subsurface rights may have the perpetual right to drill, mine, explore or remove any of the subsurface resources from the property or from a nearby location; and
  • Defines the “Seller” as a seller of residential real property upon which a new dwelling is being constructed or will be constructed pursuant to the contract with the seller, or which has been constructed since the last transfer of the property.


Before executing a new home purchase agreement it is wise to take the time to fully understand how you will be impacted before, at, and post-closing.  As always, should you have any questions about Subsurface Rights, please contact your real estate attorney.


Berlin-Patten, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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