(1) A wind energy right is not severable from the surface estate but, like other rights to use the surface estate, may be created, transferred, encumbered, or modified by agreement.

(2) (a) A wind energy agreement is subject to statutory and other rules of law to the same extent as other agreements creating interests in or rights to use real property.

(b) A wind energy agreement may be recorded in the office of the county clerk and recorder in the county where the land subject to the agreement is located. Until so recorded, the wind energy agreement is not valid as against any person with rights in or to the land subject to the agreement whose interest is first recorded, except as between the parties to the wind energy agreement and those having notice of the agreement.

(c) The county clerk and recorder shall index a wind energy agreement in both the grantor and grantee indices under the names of each party to the wind energy agreement.

(d) The provisions of this subsection (2) apply equally to any modification, assignment, or encumbrance of a wind energy agreement.

(3) (a) After a wind energy agreement has expired or has been terminated, the wind energy developer of record shall record a release in the office of the county clerk and recorder in the county where the land subject to the agreement is located.

(b) If the wind energy developer of record fails to record a release in the office of the county clerk and recorder in the county where the land subject to the agreement is located, the owner of the surface estate or the owner's agent may request the wind energy developer of record to record a release of the wind energy agreement. The request must be in writing and must be delivered personally or by certified mail, first class postage prepaid, return receipt requested, to the last-known address of the wind energy developer of record. Within ninety days after receiving the request, the wind energy developer of record shall record the release in the office of the county clerk and recorder in the county where the land subject to the agreement is located.

(c) The release must identify the wind energy agreement with reasonable clarity, including the names of the parties, the legal description of the land subject to the agreement, and the applicable recording information of the agreement. The county clerk and recorder shall index the release in both the grantor and grantee indices under the names of each party identified in the release.

(d)

(I) If the wind energy developer of record fails to record the release required by this subsection (3) within ninety days after receiving the request, the wind energy developer of record is liable to the owner of the surface estate for any damages caused by the failure.

(II) If the interest of the wind energy developer of record has been transferred by an instrument that has not been recorded, the transferee shall either:

(A) Record the instrument by which the transferee acquired the interest and thereafter record the release required by this subsection (3); or

(B) Cause the wind energy developer of record to record the release required by this subsection (3).

(III) The wind energy developer of record and every transferee described in subparagraph (II) of this paragraph (d) are jointly and severally liable for any damages caused by the failure of the wind energy developer of record to record the release, as required by subparagraph (I) of this paragraph (d), or of a transferee to comply with subparagraph (II) of this paragraph (d).

(4) Nothing in this article alters, amends, diminishes, or invalidates wind energy agreements or conveyances made or entered into prior to July 1, 2012.

(5) Nothing in this article restricts the transfer of any interest of a party to a wind energy agreement, including the transfer of the right of the owner of the surface estate to receive payments under the wind energy agreement.