purposes or both.
Schedule (heirship affidavit, adverse possession etc.)
An original title opinion is a legal document which usually first addresses the fee simple ownership (may be limited to the surface or mineral estate, depending on the wishes of the client) of a given tract of land and which can only be prepared by a duly licensed attorney. It can be written for drilling or division order purposes. It is an interrelated document usually consisting of six distinct parts: (i) Property Description; (ii) Documents Examined; (iii) Certification Date of abstract/opinion; (iv) Ownership Schedule; (v) Comments and Requirements and (vi) Attorney Disclaimer. There is a significant interrelationship in an original title opinion (as well as a supplemental title opinion) between the Ownership Schedule and the Comments and Requirements section. The rendering attorney usually represents that marketable title may be vested as set forth in the Ownership Schedule PROVIDED THAT all of the title requirements have been found to have been satisfied by the examining attorney. Stated differently, the examining attorney will not (and cannot) declare that marketable title (see below for definition) to the fee simple interest (mineral, surface, etc.) under examination has been achieved if even one outstanding title requirement remains unsatisfied. The author has never seen a 100% cured title opinion except for offshore tracts (state and federal) and some Indian tribal lands. Meaning? The failure to completely satisfy all title requirements to the satisfaction of the examining attorney results in the oil company having to rely on something less than marketable title. The majority of title opinions rendered for the oil and gas industry, given that one or more of the outstanding title requirements are not satisfied (either waived by the client company or satisfied relying on matters outside of the record title such as adverse possession), require the client company to rely on less than marketable title for drilling/royalty payment purposes ie defensible title . That a title is not a marketable title is not in and of itself a problem. Almost all titles have one or more facts outside of the record that must be relied on to support the Ownership
The purpose of the original title opinion is to provide assurance to the client company that the mineral estate is properly leased and that no outstanding mineral interests in third parties remain unleased or leased to another company. Every time a title requirement is waived by a client company there is an increased risk that title to some or all of the mineral estate may fail. The Supplemental Title Opinion is issued after and premised upon: (i) the Original Title Opinion/ prior supplemental title opinion(s) and its/their conclusions of ownership/title requirements and/ or (ii) supplemental title documents subsequently discovered in the pertinent county deed records and found to have a legal impact on the title to Blackacre and/or (iii) curative materials submitted by the client company in satisfaction of one or more title requirements found in the Original Title Opinion. A supplemental title opinion may involve either a restatement of the Ownership Schedule as it appears in the original title opinion or an updating of the Ownership Schedule based on the curative materials submitted by the client company. The examining attorney is required to understand each title requirement and exactly what the title requirement is attempting to accomplish based on the called for curative documentation. CAVEAT: The examining attorney must be extremely cautious in distinguishing between deeming a requirement satisfied based on the submitted curative materials and identifying for the client company, even though deemed satisfied, that the title is no longer marketable and is at best a defensible title if the curative materials are premised on facts occurring outside of the record. Example - An owner in the chain of title to Blackacre may have died in another county in Texas or out of state. There is no probate for that owner’s estate found in the county where the lands under examination are located. A requirement in the original title opinion was made to show if that owner died testate or intestate. An heirship affidavit was furnished in satisfaction of this title
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G rowth T hrough E ducat i on - A pr i l / M ay / J une 2023
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