Surface property owners seeking to have mineral rights declared abandoned must use “reasonable diligence” to locate unknown heirs and others who might have inherited the mineral rights to the property, the Ohio Supreme Court ruled today.
The Supreme Court stated it would not devise a bright-line rule on what constitutes the proper amount of investigation a landowner must undertake to locate unknown mineral rights owners before resorting to placing a notice in a local newspaper.
Writing for the Court majority, Justice Judith L. French stated that searching all county land and court records where the mineral interest is located is a sound basis for a reasonable search. Whether a surface property owner must search further depends upon the specific circumstances of each case, she concluded.
The Court ruled that John Chervenak was able to declare that the mineral rights under 108 acres of Guernsey County property were abandoned. He achieved that, in part, by placing a notice in the local newspaper in 2012. Chervenak used the publication requirement of the Dormant Mineral Act (DMA) after a certified letter to the only known address of the only known heir to the mineral rights was returned as undeliverable.
The decision affirmed the Seventh District Court of Appeals, which found the Guernsey County Common Pleas Court properly sided with Chervenak in his dispute with Timothy Gerrity, the son of the deceased mineral rights owner.
Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Michael P. Donnelly joined Justice French’s opinion. Justice Melody J. Stewart concurred in judgment only.
Landowner Seeks Clear Title
In 1961, the mineral rights to 108 acres in Guernsey County were severed from the surface property through a warranty deed filed by T.D. Farwell. John and Gloria Chervenak acquired the surface rights to the property by warranty deed in 1999. The couple transferred the property to the Chervenak Family Trust in 2015.
In 2012, a title search of the Chervenak property identified Jane F. Richards, Farwell’s daughter, as the owner of the mineral rights. A transfer of those rights was filed in 1965 with the Guernsey County Recorder’s Office. The certificate of transfer listed an address for Richards in Cleveland.
Richards died in 1997, and at the time of her death she was a Florida resident. Gerrity, her son, was her sole heir and claims he is the rightful owner of the mineral rights underneath the Chervenaks’ property. Property records in the Guernsey County Recorder’s Office contain no evidence of Richards’s death or Gerrity’s inheritance.
Later in 2012, the Chervenaks sought to reunite the surface and mineral rights by using the provisions of the DMA, which is R.C. 5301.56. A paralegal who performed the title search conducted a broad search of public records in the Guernsey County Recorder’s Office and the Guernsey County Probate Court to find a more recent address than the 1965 address for Richards. The paralegal was unable to locate an estate or any heirs for Richards. The paralegal then searched the Cuyahoga County Recorder’s Office and Cuyahoga County Probate Court for records leading to Richards or her heirs.
Unable to locate any information, the Chervenaks sent notice by certified mail to Richards’s Cleveland address, which was returned as undeliverable. The Chervenaks then published a notice to declare the mineral interest abandoned in The Daily Jeffersonian, a general circulation newspaper in Guernsey County.
Son Attempts to Stop Rights Invalidation
Five years after the Chervenaks published the notice, Gerrity asked the Guernsey County Common Pleas Court to declare him the exclusive owner of the mineral rights. Gerrity claimed the couple did not comply with the DMA’s notice requirements. John Chervenak asked the trial court for summary judgment, declaring the trust as the owner of the mineral rights.
The trial court sided with Chervenak, and Gerrity appealed to the Fifth District Court of Appeals. In a split decision, the Fifth District affirmed the trial court’s decision.
Gerrity appealed to the Supreme Court, which agreed to hear the case.
Law Requires Attempt to Locate Mineral Owners
Under R.C. 5301.56(E), the surface owner must attempt to serve notice by certified mail to “each holder or each holder’s successors or assignees” of the intent to declare that the mineral rights have been abandoned. If notice cannot be completed to any holder, the landowner must publish a notice in a general circulation newspaper in the county where the mineral interest is located.
Gerrity argued the Chervenaks were required to use “reasonable search methods” to locate him, and they did not make a thorough enough attempt to reach him. He argued they could have used internet records or a subscription-based genealogy service, such as ancestry.com, to discover Richards died in Florida and that her probate court records in that state would have indicated he was her heir.
Justice French explained the Court agreed that reasonable diligence is required to locate mineral interest owners but that “whether a party has exercised reasonable diligence will depend on the facts and circumstances of each case.” The Court declined to adopt a bright-line rule detailing what a surface owner must do to comply with the DMA and stated that guidance should come from the General Assembly.
The majority opinion noted that no evidence in the record indicated that the Chervenaks would have found Gerrity had they conducted online searches in 2012 when they filed their case.
Court Noted Reasonable Steps
The opinion stated that under the DMA, a mineral right will not be deemed abandoned if mineral rights owners employ any of six “savings events” within the previous 20 years. The Court noted four of the six do not involve actual use of the mineral interest, but rather filing notices or recording the rights in county records.
Part of a surface owner’s reasonable search requires consulting county land records for a savings event and examining the property’s chain of title to determine if there are any mineral rights owners to notify. A reasonable search will generally also include a search of court records, including probate court records, in the county where the property is located, the opinion stated.
Review of those records “generally establish a baseline for reasonable diligence.” However, there may be circumstances in which the surface owner uncovers information that would require the owner to look elsewhere to locate a mineral rights holder, the Court stated.
In this case, the Chervenaks did more than a Guernsey County records search. Once the paralegal learned of Richards’ Cleveland address, she searched Cuyahoga County records but was unable to locate any more information about Richards. The Chervenaks conducted enough of a search to resort to newspaper publication to satisfy the DMA requirements, and the trial court correctly determined that the mineral rights had been abandoned under the DMA, the Court concluded.
2019-1123. Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.
View oral argument video of this case.
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