The following are the three most often called for affidavits which are commonly used by landmen/title examiners to satisfy specific title requirements. Perhaps one of the most significant failings with title attorneys today is the failure to fully and completely set forth the precise facts which the affidavit must contain. For example, in a situation where reliance on adverse possession will be necessary, it is not unusual for the title attorney to request “an affidavit of adverse possession showing the use and occupancy of the lands under examination for the past ten (10) years.” What facts and circumstances does the examining attorney want/need to deem the requirement satisfied? “Your usual adverse possession affidavit” is not an answer. There is no such thing! What facts and circumstances does the title attorney need to develop such that a risk decision can be made to accept the title subject to a reasonable expectation that, if the title is ever questioned, it can be affirmed via proof of adverse possession by the party(ies) leased by the client. While no form of title requirement or affidavit can ever set forth all of the facts and circumstances that could be encountered, the author has attempted to set forth those matters which can be used a starting point for the development of both the title requirement and affidavit. The author has crafted an initial set of title requirements and a possible affidavit which responds to the title requirements. The form of affidavit contains check lists which the landman can use as a starting point in developing the final affidavit. Given the status of today’s computer technology, all unused or non- checked boxes can be deleted, leaving only the actual factual framework to inquire of the affiant in the preparation of the affidavits. A. The Unwaiveable Title Requirement - Affidavit of Use and Occupancy Opinions vary on whether there is any title requirement which can never be waived. The author believes that there is one - The Affidavit of Use and Occupancy. It simply must be obtained prior to the drilling of each and every well. The client is charged with all defects in the title which are visible on the surface of the lands - oil and gas wells, rivers, lakes, streams, structures, roads, railroads, cemeteries etc. Lands under examination simply must be inspected and the results of the findings reported since, reported or not, the client is charged with their existence.
The following is a suggested title requirement for an affidavit of use and occupancy. It is followed by a suggested form of affidavit of use and occupancy. The suggested form of affidavit is in checklist format. It allows the landman/ affiant to think about each area of interest which the examining attorney has pointed out in the title requirement that needs to be addressed. It is intended that the affiant note with specificity the facts which lead to the decision to check the particular box. The alternative provisions not utilized may be deleted from the final form of affidavit for easier reading by the examining attorney. At the end of the suggested form is a place for the landman/affiant to note additional facts not encompassed by the specific areas of inquiry.
SUGGESTED TITLE REQUIREMENT REQUIREMENT: You should secure an affidavit from one or more persons personally familiar with Examined Lands for the past twenty-five (25) years, giving the names and addresses of such persons and reciting the man- ner in which they are acquainted with the facts sur- rounding the property insofar as they relate to pos- session, use and occupancy. If the primary affiant is from one of the owners of the surface/minerals set out herein, you should also secure a corroborating affidavit from a disinterested third party which con- firms the factual statements of the primary affiant based on personal knowledge of that corroborating affiant. Suggested affidavit/corroborating affidavit forms are attached to this opinion as Exhibit “A” and “A-1” respectively. Without intending to limit the breadth and scope of the Affidavit of Use and Occupancy, please address with particularity the following: A. Boundaries. Ascertain whether or not de- finitive corners and boundaries of the property have been established and if so, then address in what manner, (i.e.: fences, markers, blaze lines, etc.), such boundaries and corners are marked and set. Determine if fences were constructed, paying special attention to the dates of construction and whether the fences follow the metes and bounds de- scription of the lands. Address whether or not such corners and boundaries, if having been established,
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G r o w t h T h r o u g h E d u c a t i o n - J u l y / A u g u s t / S e p t e m b e r 2 0 2 1
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