On Thursday, December 17, 2020, the Supreme Court of Ohio issued its opinion in Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705, in which the Court held that under the Ohio Dormant Mineral Act, codified at O.R.C. § 5301.56 (“DMA”), a surface owner may publish a notice of abandonment without first providing notice by certified mail, when after searching with “reasonable diligence,” the surface owner has been unable to locate the owners of a severed mineral interest. While the Court refused to adopt a bright-line rule as to what specific research is necessary to constitute a reasonably diligent search, it offered significant guidance, and more importantly established that serving notice by certified mail is not an absolute requirement of the DMA.
In its analysis, the Court stated that searching all county land and court records where the severed mineral interest is located is a sound basis for a reasonable search. Whether a surface owner must search further “will depend upon the specific facts and circumstances of each case.” The Court stated that any bright-line rule should come from the Ohio General Assembly.
Based on the Court’s analysis of the DMA and its evaluation of the facts involved in this specific case, we can draw several conclusions about the Court’s “reasonable diligence” standard under the DMA, including the following:
- A surface owner should always search all county land records, county court records, county probate records, and county tax records to locate unknown mineral rights owners.
- If this search provides a surface owner with sufficient evidence that there are likely additional records located in another county, then the surface owner should search the other county’s land and court records.
- If the surface owner’s search of the county records reveals an address for a mineral rights owner, then the surface owner must attempt to serve notice of abandonment by certified mail.
- If this attempt to serve notice by certified mail is returned as undeliverable or the surface owner’s search did not reveal a mailing address for the mineral rights owner, or even the mineral rights owner’s identity itself, then the surface owner may serve notice of abandonment by publication in a local newspaper.
While the Court in this case did not conclude that a surface owner must always use online resources – including subscription-based genealogy services – to locate an unknown mineral rights owner, it did note that such searches may be appropriate and, in fact, reasonable, under the facts and circumstances of certain cases.
We would also note that there is currently pending legislation before the Ohio General Assembly to amend the DMA to allow for service by publication when a surface owner cannot attempt or complete notice by certified mail after conducting a search of the public records. Further, it would define “public record” as “any document pertaining to a mineral interest filed or recorded with the auditor, recorder, and all courts situated within each county in which the lands subject to the mineral interest are located.” See 2019 H.B. 100.