Bulletin: PA2012004

Dear Associates: 

This Bulletin provides guidance on the applicability of Pennsylvania’s two statutory coal notice requirements to title commitments and policies. 

COAL SEVERANCE NOTICE:  Since 1958, Pennsylvania has required a specific notice to appear in “every deed, agreement of sale, title insurance policy and other instrument in writing except a mortgage, a quitclaim deed …. executed and delivered with respect to the surface of land and for the purpose of selling, conveying,  … or for insuring or agreeing to insure the title to said surface of land …” if there has been a prior or if there is contemporaneous severance of coal or any part of the right of surface support.  The statute requires this notice to be “… set forth entirely either in capital letters or in type or writing distinctively different from the balance of the instrument or set apart from the balance of the instrument by underlining,…” the following notice:

"This document does not sell, convey, transfer, include or insure the title to the coal and right of support underneath the surface land described or referred to herein, and the owner or owners of such coal have the complete legal right to remove all of such coal and, in that connection, damage may result to the surface of the land and any house, building or other structure on or in such land. The inclusion of this notice does not enlarge, restrict or modify any legal rights or estates otherwise created, transferred, excepted or reserved by this instrument."

The Coal Severance Clause must be inserted as an exception to the title commitment and policy in every county of Pennsylvania that has or had coal mining.  In addition, please add the following exception directly after this Notice:

According to §1553 of the Act, the Notice provisions may not be waived. 

Attached please find the list of Pennsylvania coal counties where the Notice must be an exception to the title policy.  Non-Coal counties will not require the exception.

“RED” COAL NOTICE:  The Bituminous Mine Subsidence and Land Conservation Act of 1966 requires the grantor in every deed for the conveyance of surface land in a county in which bituminous coal has been found and separately assessed for taxation to certify whether any structure then or thereafter erected on the land conveyed has a right to support from the underlying coal.  If the grantor does not sign such a certification, the grantee must sign a statement in the deed in a contrasting color with no less than twelve (12) point type that he knows that he may not be obtaining the right of protection against subsidence resulting from coal mining operations and that the purchased property may be protected from damage due to mine subsidence by a private contract with the owners of the economic interests in the coal.  The word “Notice” must be printed in the same color as the statement with no less than twenty-four (24) point type.  52 P.S. §1406.14. Customarily this notice is printed in red typeface and is referred to as the “red” coal notice.  The following is the form of the red coal notice that is inserted in the deed:

NOTICE The undersigned, as evidenced by the signature(s) to this notice and the acceptance and recording of this deed, (is/are) fully cognizant of the fact that the undersigned may not be obtaining the right of protection against subsidence, as to the property herein conveyed, resulting from coal mining operations and that the purchased property, herein conveyed, may be protected from damage due to mine subsidence by a private contract with the owners of the economic interest in the coal.  This notice is inserted herein to comply with the Bituminous Mine Subsidence and Land Conservation Act of 1966, as amended 1980, Oct. 10, P.L. 874, No. 156 §1.

The presence of the Red Coal Notice in deeds in the chain of title, puts the insurer on notice that there may have been a severance of the coal rights.  Therefore, we must add the Coal Severance Notice as an exception in both the title commitment and the title policy.  A search back to 1835 is required to make the determination that there has never been a severance of the coal rights.

If the property is located within the city/borough/town limits or in a recorded subdivision plan, lenders policies may be endorsed with the ALTA 9-06 (PA 1030) endorsement which provides coverage for damage to improvements resulting from the future exercise of any right to use the surface of the land for the extraction or development of minerals.  In coal county transactions involving vacant ground, tracts of land over 5 acres or the property is not located within the city/borough/town limits or in a recorded subdivision plan, please call a Stewart Title Guaranty underwriting counsel for approval.

In all coal counties the following exception must added in the title commitment and policy and may not be removed:

“Policy does not insure against subsidence.”

Attached please find a listing of the coal (both anthracite and bituminous) and non-coal counties in Pennsylvania. You may also find the Coal Map at http://www.portal.state.pa.us/portal/server.pt/community/bureau_of_mining_programs/20865. A zip-code index to potential coal-bearing properties can be found at: www.dep.state.pa.us/MSI/checkrisk.html. A purchaser may obtain mine subsidence insurance from the following website: www.dep.state.pa.us/MSI/getinsurance.html

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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