under examination. In addition to a statement of ownership, most title opinions, especially those prepared for oil and gas development purposes, contain qualifications to the title (“title requirement(s)”). A typical title requirement identifies the particular problem with the title and then calls for curative materials to be gathered and furnished to the examining attorney for review and comment (either satisfaction of the title requirement or a call for additional curative materials). (NOTE: The waiver of a title requirement, as distinguished from a declaration by the examining attorney that, based on the curative materials furnished it has been satisfied, is a risk decision to be made by management with the expert advise of the title attorney). After the completion of the review of the “law of affidavits”, such as the same pertains to secondary uses of affidavits, the author is convinced that the accuracy and potential use of affidavits is a direct result of full, complete and accurate title requirements. For instance, every title opinion should have a title requirement concerning the furnishing of a use and occupancy affidavit (See III. A. below). The first question that usually is asked by the landman attempting to satisfy the title requirement found in the title opinion is what does the examining attorney want in the affidavit of use and occupancy? ANSWER: Usual and customary items - how long has the present owner resided on the land, unusual surface features such as rivers, lakes, streams, and any other pertinent facts concerning potential oil and gas development on the lands under examination. It is the author’s opinion that the examining attorney has the primary responsibility to fully and completely set forth all items he/she needs to deem the affidavit of use and occupancy (or any other affidavit) to fully and completely satisfy the title requirement as well as be of potential use for secondary purposes if the need arises. The starting place for a satisfactory affidavit is the title requirement itself. To that end, the author has attempted to not only provide a framework for the three most called for affidavits in title opinions but also to identify with specificity the facts that the
affiant will need to testify to. It must be kept in mind that each title requirement will require facts specific to the lands under examination. There is no usual and customary item to be included in an affidavit. Rather, there is only an outline for what facts need to be gathered and a form to put the facts into which can be supplied by the examining attorney. That is, the affidavit will only be as good as what facts are called for by the examining attorney to be put into it. B. Notice to third parties of facts contained in affidavit Often, a client oil company will want to have an affidavit placed of record to stand as notice to third parties of the facts and circumstances as disclosed therein. The following is a discussion of the basic requirements necessary to be met before an affidavit may be recorded in a particular county official records. 1. What may be recorded in the county official records The pertinent Texas statute governing the recordation of instruments is as follows:
§ 12.001. Instruments Concerning Property. (Texas Property Code)
(a) An instrument concerning real or personal property may be recorded if it has been acknowledged, sworn to with a proper jurat, or proved according to law. (b) An instrument conveying real property may not be recorded unless it is signed and acknowledged or sworn to by the grantor in the presence of two or more credible subscribing witnesses or acknowledged or sworn to before and certified by an officer authorized to take acknowledgments or oaths, as applicable. (emphasis added)
Thus, any instrument “concerning real or
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N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
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