A habendum clause is a clause in a deed or lease which defines the type of interest and rights to be enjoyed by the grantee or lessee. It fixes the duration of the lessee's interest in both a primary and secondary terms in an oil and gas lease.
In a deed, a habendum clause usually begins with the words "to have and to hold." Its provisions must agree with those stated in the granting clause. For example, if the grantor conveys a time share interest or an interest less than fee simple absolute, the habendum clause would specify the owner's rights as well as how those rights are limited (a specific time frame or certain prohibited activities, for instance). Many states, such as Pennsylvania, require a deed to have a habendum clause in order for the deed to be officially recorded and recognized by the Recorder of Deeds.
Habendum clauses are also found in leases, particularly oil and gas leases. The habendum clause can define how long the interest granted will extend. Most oil and gas leases provide for a primary and secondary term. During the primary term the lessee can hold the lease without producing. The secondary term is usually "so long thereafter as oil and gas is produced."
The first period, or primary term, is the maximum number of years that the company has to decide whether to explore and drill for oil or gas. Generally, this term should be short—from one to three years. In general for a lease to be extended beyond the primary term, the company must be producing oil or gas that is attributable to the leased tract or, as discussed below, engaged in operations related to drilling on the leased tract or on a unit that includes a portion of the leased tract. Otherwise, the lease will ordinarily terminate at the end of the primary term.
If production in paying quantities is established, the lease will continue into its secondary term. Generally, the applicable clause may read, "This lease will remain in force and effect for a term of 3 years and as long thereafter as oil or gas produced”.
Generally, production (i.e., a producing lease) is defined as actual production in “paying quantities” over a reasonable period of time. In other words, the company must, over a reasonable period of time, earn a profit after deducting current operating expenses and marketing costs. The company may not be interested in operating a marginal well whereas the mineral owner may feel that any royalty payment is better than no payment. Accordingly, there can be times when a company and a mineral owner may not agree on whether production from a well justifies operation. In those situations, it may be a legal issue as to whether the company is obligated to operate a marginal well, that is, whether the well is producing a paying quantity.
Mineral owners will point out that paying quantities does not require a profit over and above the sunk costs of exploration, drilling, and completion. Thus, a well may produce in paying quantities by producing only a few barrels of oil per day. Indeed, about 30% of onshore oil production in the United States comes from “marginal” wells (i.e., wells that produce 10 or less barrels of oil per day). In a small minority of states (North Dakota is not believed to be among them), production in paying quantities does not mean actual production, but only capability of production.
The State lease in North Dakota refers to “commercial quantities”.
A problem also may arise when a company wants to do just enough to extend the lease beyond the primary term but not necessarily bring the well to production. Would it be adequate to begin drilling a well before the end of the primary term to extend the lease beyond the duration of the primary term? If yes, then would it be adequate to extend the primary term by preparing a well site, without beginning to drill a well? Would it be adequate to simply survey a well site before the termination of the primary term? The oil company in such a situation is holding onto the lease for a longer time but the mineral owner is not having the minerals developed. Accordingly, there may be times when an oil company argues that it has done enough to extend the lease beyond the primary term, but the mineral owner may want to argue that the oil company has not done enough, that the lease has terminated at the of the primary term, and the mineral owner is now free to enter into a new lease with another oil company.
Delay Rental Payments
For the privilege of delaying the start of the drilling during the primary term of the lease, the lease may provide for the payment of a delay rental during the primary term. The amount of delay rental is usually nominal (e.g., $1.00 per mineral acre) and is generally paid annually during the primary term but only if a well has not been “commenced”. Because primary terms in modern leases are often short (e.g., 1 to 3 years), many leases do not provide for delay rentals or expressly provide that all delay rentals have been prepaid as part of the bonus. If the lease primary term is short (e.g., 1 to 3 years) and if the acreage leased under a single lease is kept small (e.g., 160 acres) (see below), negotiating for delay rentals should be a low priority.