Crazy question What do you own? The starting point for any Texas landowner in considering the legal issues he or she may face is to consider what the landowner actually owns. This week’s column will address some of the aspects of ownership.
When land is acquired, through purchase or otherwise, a good starting point for a new landowner is to take time to review the deed records related to that property. If it is a purchase, the best advice I can give is to obtain a title policy. The title company can then provide a written summary of matters that affect the property and should be able to provide copies of the deed records.
Without a title policy, you will find these records are maintained in the courthouse and contain various documents related to the property such as deeds showing the transfer of ownership from one party to another. This is commonly called the chain of title. Additionally, the courthouse records will show any express reservations when property is transferred, any encumbrances such as mortgages or liens on the property, and any easements burdening the property. These records are open to the public, but a thorough exam will take an expert.
When reviewing records, there are a number of issues to consider. First, the new landowner should determine if the most recently filed deed shows the correct owner. When property is transferred by sale, this is generally not an issue, as I said, because a title company often handles examining the chain of title and preparation of the conveying instruments and filing of them to transfer ownership.
If property is inherited, however, it is the admittance of a Last Will and Testament or a trust document that dictates how the property transferred. In either case, there should be a legal instrument filed that either transfers the property from the estate or trust. This may or may not be in the form of a deed. Many times I have helped clients with property that is still legally titled in grandparents or even great grandparents names. This can be a lengthy and expensive process as property does not “automatically” transfer to the next generation.
Second, deed records should be reviewed to determine if there have been any reservations recorded in the official public records. This is particularly important when determining mineral interest. There may or may not have been a severance of the property that resulted from reservations. It is important to consider if there have been any reservations of rights on the property such as mineral, groundwater, or even wind rights.
Finally, determine if there are any encumbrances on the property. This could include liens or mortgages on the property that have not been released. For agricultural land, there could also be lease agreements that have been recorded that might have to be honored by the new landowner. Also important is to determine if there are any existing easements on the land, whether those be for existing pipelines, power lines, water lines, or access easements allowing another party to enter the land. Access easements may be exclusive, shared or for a limited purpose or time.
This might seem like a relatively easy task, but it can take hours or days to dig through volumes of records, reading very specifically the language in instruments, some of which can be very confusing. Therefore, while it may be expensive, the best course is to hire an attorney familiar with real estate to assist you. Then be patient as they perform the task. And as I pointed out earlier, hiring a title company when you purchase property is a great investment in knowing what you are buying and protecting your purchase.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.