Satisfaction of title requirement – The examining attorney, after a review of the curative materials submitted in connection with a title requirement, may deem that title requirement satisfied and, if necessary, adjust the ownership schedule accordingly. CAVEAT: A subsequent examining attorney may find itself disagreeing with the curative documents called for or the conclusion of ownership set forth in the Ownership Schedule detailed in a previous title opinion. The conclusion expressed in each title opinion (original or supplemental) is that only of the examining attorney. The author has seen this handled in two different ways: (i) recommend sending the curative materials back to the prior examining attorney along with an explanation and ask the prior attorney to render a supplemental title opinion or (ii) set out the conflicting facts/principles of law and restate the title requirement, analyze the curative data and adjust the Ownership Schedule accordingly. The author has always preferred the first choice if possible. There may well be facts and circumstances known only to the prior examining attorney which may not have been put in the title requirement and which could significantly affect the title to the lands under examination. This preferred method is also in line with Chapter I, Standard 1.30, Texas Title Examination Standards. CAVEAT: Always write each title requirement, whether in an original or supplemental title opinion, as though another attorney will be reviewing the title curative materials and working the corresponding title requirement. Conditional satisfaction of title requirement – The examining attorney may have called for a curative document involving an affidavit such as an affidavit of heirship. Definitionally, if an affidavit containing facts outside of the record title is to be relied on by the client, the quality of title is diluted from marketable title to at best defensible title. It is up to the client company to accept the risk that the facts contained in the affidavit are accurate and correct. (The author prefers to note such risk acceptance in the supplemental title opinion.) The examining attorney may then note the appropriate change(s) in the ownership
schedule assuming the risk decision by the client company was an accurate one. Properly identified risk decisions to be made by the client company and pointed out by the examining attorney, even if the assumption of that risk by the client company turned out to be the wrong decision, relieves the examining attorney from any malpractice liability with respect to a failure of title due to that specific requirement. Conclusion - The owner of the original title opinion has the ultimate decision whether to accept the schedule of ownership as written (with no satisfaction of any title requirements), to satisfy all title requirements or to satisfy some and not others (waiver). That decision is solely one for the client with advice from the rendering attorney. The rendering attorney does not waive title requirements unless he/she wishes to accept all attendant risk associated with such waiver (including monetary loss if the title fails in whole or in part). Once apprised of the risks of waiving the title requirement, it is up to the client to advise the rendering attorney of its decision to waive a title requirement. Thereafter, the attorney should note in a subsequent supplemental title opinion that one or more specific title requirements have been waived by the client company. Such notice thus qualifies the ownership schedule and its accuracy and correctly allocates the risk to the client company.
Issue 2 : Who owns the title opinion?
The client oil company paid a fee (either hourly or fixed sum) to the examining attorney for the delivery of either an original or supplemental title opinion. Upon payment of the money and delivery of the title opinion by the examining attorney to the client company, the contract for legal services is fulfilled. Thereafter, the title opinion (either original or supplemental) rendered for a client is owned by the client . The title opinion itself is the work product of the rendering attorney.
Issue 3 : Who may rely on the title opinion?
The right to rely on the contents and conclusions of an original or supplemental title opinion belongs
21
G rowth T hrough E ducat i on - A pr i l / M ay / J une 2023
Made with FlippingBook. PDF to flipbook with ease