Robert and Julie Davidson fell hard for the gleaming new house at the Valencia Golf and Country Club in Naples, Florida. They loved the way the palm-fringed, Spanish-style home backed up to the fifth-hole fairway. And they were taken with the three-bedroom's high ceilings and open plan. Plus the neighborhood—with its power-washed driveways, blooming hibiscus and guarded gatehouse—seemed all "dressed up."
But when the Davidsons paid $255,385 in 2011 for the house on Birdie Drive, they didn't know that they had, in essence, bought only from the ground up, and that their homebuilder, D.R. Horton, had kept everything underneath.
"Wait a second, wait a second," Robert Davidson said after a reporter told him that a search of county records showed that D.R. Horton still owned the oil, natural gas, water and other natural resources beneath his and his neighbors' homes. "Let me sit down a minute here. They have the mineral rights to the land I'm on?"
In golf clubs, gated communities and other housing developments across the United States, tens of thousands of families like the Davidsons have in recent years moved into new homes where their developers or homebuilders, with little or no prior disclosure, kept all the underlying mineral rights for themselves, a Reuters review of county property records in 25 states shows. In dozens of cases, the buyers were in the dark.
The phenomenon is rooted in recent advances in extracting oil and gas from shale formations deep in the earth, fueling the biggest energy boom in modern U.S. history. Horizontal drilling and the controversial practice of hydraulic fracturing, or "fracking," have opened vast swaths of the continental United States to exploration.
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As a result, homebuilders and developers have been increasingly—and quietly—hanging on to the mineral rights underneath their projects, pushing aside homeowners' interests to set themselves up for financial gain when energy companies come calling. This is happening in regions far beyond the traditional American oil patch, which has a long history of selling subsurface rights.
"All the smart developers are doing it," says Lance Astrella, a Denver lawyer who represents mineral-rights owners, including homebuilders, in deals with energy companies.
Among the smart ones are private firms like Oakwood Homes in Colorado, the Groce Companies in North Carolina, Wynne/Jackson in Texas, and Shea Homes, which builds coast to coast. Publicly traded companies that engage in the practice include the Ryland Group, Pulte Homes and Beazer Homes, according to oil and gas attorneys and public land records.
D.R. Horton, the biggest U.S. homebuilder, is a heavy user of the practice. The Fort Worth, Texas, company has separated the mineral rights from tens of thousands of homes in states where shale plays are either well under way or possible, including North Carolina, Alabama, Mississippi, Virginia, New Mexico, Nevada, Arizona, Oklahoma, Utah, Idaho, Texas, Colorado, Washington and California. In Florida alone, the builder has kept the mineral rights underneath more than 10,000 lots, a review of county property records shows.
In most states, sellers aren't legally required to disclose to home buyers whether they are severing the mineral rights to a property. Builders sometimes flag the move in sales contracts or deeds and other documents they are required to file with local authorities. But buyers don't necessarily review their paperwork very closely, especially if, as real-estate agents say happens often, they don't hire a lawyer to help them with the transaction.