What is a surface lease in Alberta and what does it mean for my land?
This answer covers the law of Alberta.
A surface lease is a written agreement that lets an operator use part of the surface of your land, and it can take the form of a right of way agreement or an easement. Unless the order says otherwise, a right of entry order does not give the operator a certificate of title to your land or the right to take sand, gravel or clay.
An operator generally cannot enter until the owner and occupant consent, or until the Land and Property Rights Tribunal grants a right of entry order. Payment may include compensation, which the Tribunal can assess using market value, loss of use, nuisance and damage, and rent that is reviewable on the 4th anniversary and then every 5th anniversary. On freehold land only, the operator must pay a legislated entry fee before entering, unless an exemption applies. The operator must also prepay 80% of its offered compensation for the first compensation year, unless an exemption applies, such as certain gas distributors or orders made before July 4, 1983.
An operator is generally the person with the right to a mineral. A surface owner owns the surface but not the minerals, unless the title carries both. How a lease shows on your title is worth confirming with a lawyer.
Key takeaways
- A surface lease can take the form of a right of way agreement or an easement, and it can replace a right of entry order.
- An operator generally needs the consent of the owner and occupant, or an order of the Land and Property Rights Tribunal, before entering.
- Rent under a surface lease or right of entry order is reviewable on the 4th anniversary and then every 5th anniversary.
- Surface ownership and mineral ownership can be separate, so check your certificate of title to see who holds what.