Wind farm lease

  • 1.  Wind farm lease

    Posted 06-09-2020 11:25
    The Wind Farm Lease has the following clause, “Lessee hereby leases from Lessor, that certain real property, including all air space thereof”. Can air space be severed like minerals and when deeded surface only is the “air space“ included?

    Greg Spalding

  • 2.  RE: Wind farm lease

    Posted 06-09-2020 15:30
    Yes. I recall an Irish pub in Denver that sold airspace to high rise building developers.

    David Terry CPL
    Thames River, LLC
    Salt Lake City UT
    (801) 971-2165

  • 3.  RE: Wind farm lease

    Posted 30 days ago
    I can't give you the details as I heard of this long ago, but I believe there is a Hilton built over a train station in Chicago.

    Peter F. Lockhart, CPL

    1135 Shady Lane
    Ashland, Ohio 44805
    (419) 651-0105

  • 4.  RE: Wind farm lease

    Posted 06-10-2020 12:29
    So it goes that if it can be severed and conveyed, then a person could also Inherit the Wind.

    Tommy Vance CPL
    Vance Land, Inc.
    Montgomery TX
    (817) 727-1889

  • 5.  RE: Wind farm lease

    Posted 26 days ago
    Funny! Love the reference.

    Chris Smith
    Fort Worth TX
    (817) 800-8852 Ext chris

  • 6.  RE: Wind farm lease

    Posted 30 days ago

    We sold a property 10 years or so ago and wanted to reserve a portion of the mineral and wind rights.  We worked on it for quite some time and ended up reserving "an undivided XX% interest in the proceeds or value of any and all royalties, payments in lieu of royalty, minimum royalty payments, renewable energy credits (as said renewal energy credits are defined below), or other benefits directly or indirectly paid or accruing to Grantor for, or in anticipation of, or in connection with the generation of electricity from wind power on or from the Land."  We excluded our right to any $ for surface damages resulting from a wind farm, and for electricity generated for Grantee's use.  It was a very extensive addendum that we attached to the deed. Since this was done so long ago, I suggest you consult an attorney familiar with these transactions.

    Dalton Donaldson CPL
    Land Manager
    Purvis Operating Co.
    Midland TX
    (432) 682-7346

  • 7.  RE: Wind farm lease

    Posted 29 days ago

    Think that bar was Duffy's Tavern in Denver. Had our office above the tavern.


    Sent from Mail for Windows 10


  • 8.  RE: Wind farm lease

    Posted 29 days ago
    1.  Spacing or Location Exception issues and production units.

    As an example, if the turbine base is located 50' from the lease line, but the propeller is 60' and at times is operating over the adjoining non-leased property do we have an issue, is an acreage unit needed, similar to Spacing in Oklahoma? The ancient "Wind Fall Tax" issue comes to mind.  

    2.  Salt water disposal wells in close proximity to Wind Turbines.

    If salt water disposal wells cause earthquakes, and those earthquakes compromise the turbine base, can a Wind company control the surface to the extent that they can refuse to allow disposal wells?

    Greg Spalding

  • 9.  RE: Wind farm lease

    Posted 26 days ago
    Yes it was, and you did, and I remember that!  Hello Kathryn, I hope you are doing well!

    Bill Rainbolt, CPL Retired
    Houston, Texas

  • 10.  RE: Wind farm lease

    Posted 30 days ago
    the intent being to keep the lease clear of any obsticles to the wind turbines. Its part of the lease and would expire with the lease.

    Charles P. Fairchild
    Senior Title Officer
    Lexington Title Company

  • 11.  RE: Wind farm lease

    Posted 30 days ago
    Property owners  own the rights to the air space above their property and  may choose to develop their air space (excluding flight routes for planes) as they desire. Property owners may also choose to lease or sell their air rights as they would mineral or surface rights.  Although not particularly relevant to farm, rural or agricultural areas the issue is huge regarding cities of  high density.  Like mineral rights air rights can also be very valuable as allowable building height determines value.  These rights can even be sold as Transferable Development Rights (TDR's).

    Bob Knudsen
    Shoreline WA
    (206) 440-4185

  • 12.  RE: Wind farm lease

    Posted 30 days ago
    Just for information:
    In Texas if you will read the electrical ROW documents and the ROW information on Subdivision Plats, most of them have a variable width at different distances above the ground ie: a 5' wide easement at the surface and it goes to 10' wide easement 15' above the ground, This could be considered "air space". I have been involved in researching instances where the two story part of the structure(house or garage) infringed on the air space and the utility company easement prevailed. 

    Professional Landman, AAPL
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  • 13.  RE: Wind farm lease

    Posted 30 days ago
    Your cause would include all air traffic as well, so it's fodder for the courts.

    Mike Rawson
    Ajijic Jalisco Mexico

  • 14.  RE: Wind farm lease

    Posted 30 days ago
    Yes air rights can be severed.  Ask Donald J. Trump and Tiffany's.
    Trump tower is built on the air rights of Tiffany's in New York City.

    Sears Tower in Chicago was build out of the air rights owned by Chicago Union Station.

    If you own the dirt in fee - you own the mineral rights to the center of the earth and you also own the air rights.
    Unless a previous owner reserved the minerals or the air rights.

    John Sipple
    Southern Oil Exploration, Inc.
    Fairhope AL
    (251) 517-7362

  • 15.  RE: Wind farm lease

    Posted 30 days ago
    Apparently it can be deeded.  Just found this article.  Interesting read.

    William Fite
    Houston TX
    (713) 805-7790

  • 16.  RE: Wind farm lease

    Posted 30 days ago
    yes, besides oil gas and other mineral reservations I have seen reservations of solar and wind rights appearing more. 

    Sent from my iPad

  • 17.  RE: Wind farm lease

    Posted 30 days ago

    The severing of air rights is a fascinating topic. 

    QUESTION - If a party intends to sell a tract of land for which the "air rights" have already been reserved, should the deed cite that the space above the surface of the earth is "Gone with the Wind"  ??

    And hey, what was the name of that old movie?


  • 18.  RE: Wind farm lease

    Posted 29 days ago

    Yes the deed should reflect that the air rights were reserved by prior owners.  I am not sure about the wording – but I like the phrase "Gone with the Wind"


  • 19.  RE: Wind farm lease

    Posted 30 days ago

    All true.  I just assumed your question was with respect to a ranch in wind farm country.


    Briggs Donaldson


    D. Briggs Donaldson, CPL, CPLTA, CDOA

    P.O. Box 51990

    Midland, TX 79710-1990

    Cell: 432-638-5754

    Off: 432-682-7346

    Fax: 432-683-9584


  • 20.  RE: Wind farm lease

    Posted 30 days ago
      |   view attached
    Wind and Solar rights can be severed, but there is no case law that I'm aware of. Just like minerals, unless explicitly reserved everything from the surface up goes with the conveyance. 

    Robert H Wilson III, RPL
    RH3, LLC

  • 21.  RE: Wind farm lease

    Posted 30 days ago
    Every Landman should watch Christina and Cher in the 2010 movie Burlesque.  They maximized the value of the airspace over Cher's bar!

    David Gibson
    Land Advisor
    Beaubien Energy Company
    Houston TX
    (281) 221-0928

  • 22.  RE: Wind farm lease

    Posted 30 days ago
    Putting my Holiday Inn Express Law Degree (disclaimer -not a real thing) I would not think that Air Space could be severed.  Deed Restrictions may need to be addressed as to Uses; however, strictly reserving Air Rights, I don't see it happening.  How high from surface; uses, etc..  It could not be too high because of air travel or satellite orbits.  This could limit Communications Towers.  Are you allowed to breathe the Air?  It gets pretty ridiculous.  Plus if you only had Air Space to a certain height without the Surface Use what good are the Air Rights?  I doubt a purchaser of Land would waive the Air Rights.  If you are signing a Lease for a Wind Farm, make sure to define what restrictions there are and I would limit the height of Air Space.  You should also include a clause that allows you to Lease an area for a Communications Tower as long as it does not interfere with a Wind Turbine.  I would think a Court would only deal with the issue of Interference of blocking the Wind or to keep the owner of the land from Operating a Sky Diving School or Airport or some other business that would create a hazard to the Wind Farm.  Looking forward to other responses.

    L. Dee Thornton CPL
    Houston TX
    (832) 788-6030

  • 23.  RE: Wind farm lease

    Posted 30 days ago
    Check this out.

    2016 Oklahoma Statutes
    Title 60. Property
    §60-820.1. Airspace Severance Restriction Act.
    Universal Citation: 60 OK Stat § 60-820.1 (2016)
    A. This act shall be known and may be cited as the "Airspace Severance Restriction Act".

    B. It is the intent of this act to restrict the permanent severing of the airspace over any real property located in this state for the purpose of developing and operating commercial wind or solar energy conversion systems. Leasing arrangements for development of wind or solar energy conversion systems may be made only with the legally authorized owner of the surface estate pursuant to the provisions and restrictions provided by this act or otherwise provided by law. The provisions of this act shall not apply to any property owner utilizing wind or solar energy conversion systems for domestic use only.

    C. For the purposes of this act a "wind or solar energy agreement" means a lease agreement, whether or not stated in the form of a restriction, covenant, or condition, in any deed, wind or solar easement, wind or solar option or lease securing land for the study or production of wind or solar-generated energy, or any other instrument executed by or on behalf of any owner of land or airspace for the purpose of allowing another party to study the potential for, or to develop, a wind or solar energy conversion system on the land or in the airspace. A wind or solar energy agreement shall in no way be deemed to contravene, supersede, amend, modify or alter the existing powers, requirements, limitations or other provisions of statutory or common law pertaining to aviation, air transportation, air commerce or air operations.

    D. A wind or solar energy agreement shall run with the land benefitted and burdened and shall terminate upon the conditions stated in the wind or solar agreement.

    E. An instrument entered into subsequent to July 1, 2010, that creates a land right or an option to secure a land right in real property or the vertical space above real property for a solar energy system, for a wind or solar energy conversion system, or for wind measurement equipment, shall be created in writing, and the instrument, or related memorandum of easement, or an abstract, shall be filed, duly recorded, and indexed in the office of the county clerk in the county in which the real property subject to the instrument is located. The instrument, but not the related memorandum of easement or abstract, shall include but not be limited to:

    1. The names of the parties;

    2. A legal description of the real property involved;

    3. The nature of the interest created;

    4. The consideration paid for the transfer;

    5. A description of the improvements the developer intends to make on the real property, including, but not limited to, roads, transmission lines, substations, wind turbines and meteorological towers;

    6. A description of any decommissioning security as defined in subsection B of this section, or other requirements related to decommissioning; and

    7. The terms or conditions, if any, under which the interest may be revised or terminated.

    F. No interest in any resource located on a tract of land and solely associated with the production or potential production of wind or solar-generated energy on the tract of land may be severed from the surface estate except that such rights may be leased for a definite term pursuant to the provisions of this act.

    G. The provisions of this act shall not affect any agreements or contracts entered into pursuant to the provisions of the Oklahoma Airspace Act, Section 801 et seq. of this title.

    Added by Laws 2010, c. 334, § 1, eff. July 1, 2010. Amended by Laws 2011, c. 50, § 1, emerg. eff. April 13, 2011.

    In the petroleum industry we have had @100 years of litigation to sort this out and still have issues, however I'm thinking one day, if it hasn't already happen, that winds aloft will be purchased, traded, or sold just as minerals are today, and that surface owner rights may be similar to those of our industry.  The surface might be sub-servant to "winds aloft", the surface owners might be paid damages for ROW, roads and turbine sites, and yet not receive "royalties".

    I appreciate all of your remarks, answers and the hints of sarcasm, certainly there will be groups that will be against the wind.

    Greg Spalding

  • 24.  RE: Wind farm lease

    Posted 29 days ago
    That is interesting Charles, it is kind of like a dormant wind and solar act. Thanks for the post.

    Senior Title Officer
    Lexington Land Services of TX, LLC
    1400 Post Oak Blvd., Suite 400
    Houston, Texas 77056

  • 25.  RE: Wind farm lease

    Posted 26 days ago
    I was not aware of this statute.  I wonder if I sold the land and retained 0.01% of the surface, could I retain the wind rights?

    Martin Gibson