Ready, set, hike…now what? By Katherine Van Wagner

by News Editor
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on 15 August 2016
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Imagine you’re the quarterback in the big game.  You think you have the right game plan, but the other team’s defense keeps shutting you down.  You need a new playbook.  You look desperately at the sidelines.  Is there someone there to help you make the right calls? 

My name is Katherine Van Wagner, and I’m the newest member of the Frye, Oaks, Benavidez & O’Neil, PLLC, team.  I come to the firm with multiple years of experience in the oil and gas industry, where I’ve gained valuable experience contending with contracts and land.

Land is one resource Texas has in abundance.  With the plentiful land in Texas, how do you keep straight who owns what?  If there is something wrong with your Deed, how do you fix it?  If you buy a tract of land, do you also own the rights to the oil, gas, and other minerals under the surface of that tract of land?  The answers to these questions, like so many issues in law, aren’t completely cut and dry and depend on the facts of the case.  I briefly address general answers to these questions facing many Texas landowners below.

With the plentiful land in Texas, how do you keep straight who owns what? 

If you are searching for the owner of a tract of real property (i.e. land) in Texas, Deeds and other title documents should be filed for record in the county records of the county where the piece of property is located.  These records contain documents evidencing the title from what we in the title world call sovereignty (When the original governing entity issued a patent for the land) to present.  While some counties in Texas now have some of these records available online, for many counties you will still have to make a trip to the courthouse.  How you determine who has record title for a particular piece of land is based on the documents filed for record in the county records.  These documents help form the chain-of-title for that piece of land.

If there is something wrong with your Deed, how do you fix it?

In my time reviewing title issues, I’ve encountered numerous errors, ambiguities, and deficiencies in Deeds and other conveyance instruments.  In some instances, errors with the legal descriptions, conveyance language, or the capacity of the party or parties granting the Deeds, known as the Grantors, can result in the wrong land or no land at all actually being conveyed to the party or parties receiving the land, known as the Grantee(s).  While filing for record in the county records a well-drafted Correction Deed executed by the Grantor(s) and Grantee(s) or their successors-in-interest that clearly addresses and corrects the problem is one possible solution, it is not always a viable option.  It also may prove to be too late to prevent a competing claim from a bona fide purchaser for value who acquired an interest in the land prior to the recording of the Correction Deed. 

Many of these errors, ambiguities, and deficiencies could have been avoided if a conscientious attorney familiar with land and title drafted the documents or at least reviewed the documents prior to their recording in the county records.  The fees you saved on the initial drafting of documents may look paltry compared to the headache and legal fees you may confront later.     

If you buy a tract of land, do you also own the rights to the oil, gas, and other minerals under the surface of that tract of land? 

Land in Texas is divided into two estate classifications:  the surface estate and the mineral estate.  The surface estate comprises exactly what it sounds like, rights to the surface acreage.  The mineral estate includes five (5) separate real property rights to the oil, gas, and other minerals underlying the surface acreage: (1) the right to develop (the right of ingress or egress) (2) the right to lease, which is known as the executive right (3) the right to receive bonus payments (4) the right to receive delay rentals 5) the right to receive royalty payments.

Whether or not the owner of a tract of land owns both rights to the surface acreage and the oil, gas, and other minerals underlying the land generally depends on whether or not the surface estate owner and the mineral estate owner is one in the same.  The surface estate owner and mineral estate owner are generally one and the same until there is a severance of the estates.  This may happen by a reservation or conveyance of the oil, gas, and mineral rights.  You may see language in a Deed reflecting that Joe Aggie conveys Texas Ranch to Jim Longhorn except reserving herein all rights to oil, gas, and minerals underlying the herein described land.  At this point the surface and mineral estates have encountered a severance.  Jim Longhorn owns the surface estate and Joe Aggie owns the mineral estate.

Please keep in mind that the ownership of surface and mineral estates tie back to what documents are in the chain-of-title for your land.  That means even if your Deed conveys all rights in a tract of land to you and does not expressly mention any prior mineral reservations or severances, you still may not be receiving property rights to 100% of the surface and mineral estates for the tract of land.  For example, Jim Longhorn, as Grantor, executes a Deed conveying 100% of Tract A to Ralph Raider, as Grantee.   Joe Longhorn was conveyed his interest in Tract A in a Deed executed by Bob Bear, as Grantor.  Neither Deed mentions any mineral reservations or severances.  However, in a previous Deed filed for record in the county records of the county where Tract A is located, Joe Aggie conveyed all of Tract A to Bob Bear except reserving therein all oil, gas, and mineral rights in and to Tract A.  Assuming there were no other conveyances of Tract A involving these parties, Ralph Raider now owns the surface estate of Tract A and Joe Aggie owns the mineral estate of Tract A.  Since Joe Aggie retained the mineral estate in a prior Deed, the mineral estate is not Jim Longhorn’s to convey to Ralph Raider. 

The issues discussed above are just a small sampling of the myriad of land-related issues you may face.  Land law in Texas is very nuanced.  With football season fast approaching, it’s time to remember that the best defense is a good offense.  If you have questions regarding the ownership or status of your land, please consult a skilled attorney to make sure all your property, title, and related contractual needs are handled properly (I would be happy take a consult with you to see if I can be of assistance.)  You don’t want to end up at 4th and inches and be forced to punt.  Here at Frye, Oaks, Benavidez & O’Neil, PLLC, we aim to provide our clients with the right play calls to score touchdowns in the big game of life. 

Thanks and Gig ‘em!

*Please note this post was written for the purposes of providing general information.  This post was not written to provide individualized legal advice or counsel and should not be construed as such. 

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