Utah property owners should understand all of the laws that govern their property. These laws include mineral and water rights, eminent domain, zoning and squatter’s rights. The purchase of a home and land does not necessarily give the owner the rights of ownership to the area and content beneath the surface. At Wall & Wall, P.C., we want our clients to fully understand their rights. We have been providing legal services to the Salt Lake City area since 1973.

Surface Rights and Mineral Rights

A fee simple estate is complete private ownership of the surface land, minerals below and air above. A private property owner can sell or lease mineral rights while still retaining ownership of the surface land. Mineral rights often include any gas or oil below the surface. When a property owner enters a sale or lease agreement, the mining company is given the right to enter the property for excavation. However, mineral rights do not include exclusive surface rights.

Creating a legal sale or lease agreement is critical to protect the rights of the landowner. All terms must be covered including where excavations will be performed and what machines will be used. The agreement should also include what type of restoration will be done after the mining operation is completed.

One problem with land ownership and full rights is that an individual can purchase property that only includes rights to the surface land. This information must be included in the deed. Over many years, an original owner may have sold the mineral rights and this sale would be permanent. A lease is temporary, but a sale would remove the rights of ownership under the surface.

The Utah Surface Owner Protection Act of 2012 was designed to balance the rights of the surface owner with the rights of oil and gas companies seeking mineral rights on private property. This act includes:

  • Fully detailing the use and reclamation of land, including compensation for surface damage.
  • The mineral company is obligated to provide a bond to plug wells and repair wells creating pollution.
  • The company may access the surface land, but must minimize interference with the land owner’s access.
  • The land owner must be compensated for unreasonable crop loss or loss of value to the property.

This act applies in split estate properties between land owners and private or public companies. If the mineral rights are owned by any Indian Tribe or the federal government, Bureau of Land Management regulations apply.

Mineral Rights

When it comes to laws regarding Federal lands, locatable minerals come under the General Mining Law of 1872. United States citizens are allowed to discover, explore and purchase mineral deposits on Federal land that is open to mineral entry and claim location. Minerals covered under this law include most metallic deposits and some industrial and non-metallic minerals.

This law allows states to enact laws that control the recording and location of claims as long as they are consistent with Federal laws. Federal regulations governing this are in Title 43 of the Code of Federal Regulations (CFR) Groups 3700 and 3800.

The Bureau of Land Management (BLM) for the State of Utah handles the recording of claims. The Federal Land Policy and Management Act of 1976 (FLPMA) required that any persons holding existing claims report those claims to the BLM. The reports were required by October of 1979. All new claims are now directly reported to the BLM. The report information includes mill sites, tunnel sites and unpatented mining claims.

In order to make a mining claim in Utah, a record must be filed with a County Recorder within 30 days. The record must contain the township location, range, section and quarter section as well as the type of location, date, name of the claim, claimant’s name and claimant’s address. A map of the boundary must be included. New location notices must be filed with the Utah BLM within 90 days.

A fee of $194 is due when the claim is filed. Annual maintenance fees are due on or before September 1 each year.

Water Rights

A property owner in Utah does not automatically have water rights. When an owner wishes to drill a water well, a right to divert the water must be obtained. The State Engineer office maintains a list of areas that are open, restricted or closed to gaining new water rights. The property owner must first determine the designation for the area and then file an application with the state.

In areas that are considered closed, property owners can purchase part or all of an existing water right. Once acquired, a change application must be filed to cover the new owner’s right to the water use. It may take several months for an application to be approved. However, provisional drilling approval may be obtained ahead of time to allow well drilling to begin. The water may not be used until the right is granted.

In Utah, water is consider to be real property and the right to use can be purchased and sold just like other real estate. When an individual needs to purchase a water right, the amount of water needed and what the water will be used for must be considered. Water rights purchases are based on foot-acre needs. The figures are determined by the number of people using the water as well as irrigation and livestock needs.

As of May 2010, rainwater harvesting became legal in the state. Collecting and using rainwater is allowed without obtaining an actual water right. However, the intent must be registered with the Division of Water Rights. Storage of rainwater is limited to two 100 gallon containers above ground or one 2,500 gallon container below ground. The rainwater must be collected and used on the same land parcel.

Eminent Domain

Eminent domain occurs when a government or public service agency requires private property for a public purpose. The Federal Bill of Rights and the Utah Constitution have what is referred to as Taking Clauses to protect the rights of property owners.
Under the law, government agencies may take private land for public use, but must provide fair compensation to the property owner. The legal process may also be called condemnation.

When eminent domain occurs, the taking of private property is not just limited to the actual forced sale of the real estate. The action can also include government actions or regulations that significantly interfere with the enjoyment or use of a private property. This can occur in areas that do not originally fall into a city or township and then are acquired by the city or township. For example, new building regulations cannot be automatically applied to existing properties.

In Utah, certain agencies have the power to condemn or obtain property through eminent domain. These agencies include most governmental groups and private parties including railroads or utilities. No matter what agency is taking eminent domain, the property use must be for the public good and the owner must be compensated. The agency seeking the property may often offer a sum for the real estate to the owner first. If the purchase is not accepted, the agency must file a court action to force a sale. It is then up to the courts to decide if an eminent domain take-over is within the law.

Both the Fifth Amendment of the U.S. Constitution and the Utah Constitution cover the rights of private property owners. The wording is included in Utah Constitution, Article I – 22. The requirements for bringing and eminent domain action are covered under Utah Code Section 78B-6-501 through 522.

The eventual ownership of the property taken does not have to be a government agency. However, the property use must be for the public good. Some examples of approved public uses are:

  • Roadways
  • Schools
  • Public parks
  • Reservoirs
  • Oil or gas pipelines

Property owners can be required by the court to allow the agency access to the property for surveys and examination. If any damage is done to the property during the surveying, the agency must either restore the property or pay for the damages. Just compensation for the sale of the property means fair market value.

Squatter’s Rights

A squatter is defined as an individual that remains on a property, belonging to someone else, without permission, legal right, title or payment of any rent. Squatters will often try to take possession of public land, but may also try to possess private property. The action of obtaining the property in this method is also referred to as adverse possession.

The adverse party or squatter is known as the disseisor. In general, several requirements must be met in order for the disseisor to attempt to claim the property.

  • The party must have some form of actual possession of the property. This includes living in a dwelling, maintaining the landscaping, farming or mining.
  • The possession must be without permission or hostile. However, a force of arms possession, the use of weapons to take over property, does not equal possession.
  • The use of the property must be known and visible or apparent.
  • The possession or use of the property must be continuous. For example, seasonal use by camping may not be considered continuous. If the property owner manages an eviction, the continuous use would restart if the squatter returned.
  • The disseisor’s use must be exclusive. In other words, if the owner also uses the property, the squatter does not have exclusive use.

In regards to a rental property, even without a lease, as long as the tenant is paying rent, squatter’s rights cannot be claimed. If a property owner fails to take eviction proceedings after rental payment stops, the clock begins running for adverse possession.

Anyone that owns property should make regular inspections to ensure that no one has taken up residence. The requirement for known use does not mean the property owner must know. It means that the use is visible or known to anyone else nearby.

In the case of a bad survey, legal issues can become complicated. These cases become a matter of one property owner using land that is believed to be under ownership while the true owner does not realize the property should be included in their survey. Survey issues are best left to attorneys and the court system.

Adverse possession or squatters rights are not the same type of possession as eminent domain or homesteading. Under homesteading, the individual normally takes possession of unused government land without hostility. An easement, the right to cross over another individual’s property for access, can become permanent. An easement can also be revoked if the property owner successfully interferes with the access and takes adverse possession.

A property owner must take legal action to remove a squatter to prevent the individual from making a claim to the property. In Utah, the required continuous use time for a squatter to take ownership is seven years. However, the individual claiming the right to the property must also pay all property taxes and assessments on the real estate during the time that the person is in adverse possession. This comes under Utah Code 78-12-7.1 through 21. For easement use to become permanent, the use must be for 20 years. Utah Common Law; Title 78, Chapter 12.

Zoning

In Utah, each county or municipal government establishes zoning rules for the area. Zoning laws are designed to prevent conflicts in property use and improve the livability of the town or city. Zones are normally divided into several categories. Residential areas are for housing and may or may not permit small commercial buildings. Other zones will include commercial and office use with the possibility of large scale apartment buildings. Manufacturing and industrial facilities come under an additional category.

Zoning regulations go further than just the type of building in an area. Zoning laws will also cover how the property is used or even modified. Laws can cover where individuals may park vehicles, the maximum size allowed for a storage shed and what types of remodeling is allowed. For example, in areas that are designated historical districts, modifications must normally meet a specific set of guidelines including architectural styles and colors.

When a citation is issued for a zoning violation, it is usually best to try to remediate the problem. However, this may not always be feasible. Property owners can apply for variances with the regulating authority. Depending on the nature of the violation, a variance may be granted. The decision is often based on the effect of the violation on surrounding property owners or the community in general.

As an example, a residential community may place a restriction on the number or type of pets a property owner has. An owner with two more pets than allowed may not present a problem to the neighbors. An owner turning the property into a small farm could end up becoming a nuisance. Zoning can also cover a residential home being used for business purposes. A home office does not usually interfere with a neighborhood. A residence with large numbers of clients visiting each day might end up becoming a violation.

Residents and business should also understand that zoning regulations and ordinances can change. However, existing properties are normally exempt from the regulations. The use will be grandfathered.

To further understand zoning breakdowns, codes are used to designate permitted use. An R-1 designation is for single family homes. Apartments and duplexes would not be permitted. In order to rent a space in a residence in a R-1 zone, a variance might be required. A-1 is the code for an agricultural area, however, farms homes may be allowed. Municipal governments and cities, including Salt Lake City, provide maps with defined zones to help residents and businesses determine allowed uses.

Protect your investment in your property

You need an attorney to work with you regarding the many legal issues you may face as a property owner in Utah. At Wall & Wall, P.C., we have the experience you need. We will listen to your unique needs, explore your options and represent you in court for a successful resolution. We are a family owned local law firm in Salt Lake City and have been serving the state of Utah for over 40 years.

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