Some of the gifts were easier to classify than others. The court found, for example, that a 1993 Buick had been given by the father only to Gina, and not for the use of both husband and wife. Four different gifts of $10,000 each from the father, made to qualify for the annual gift tax exemption, had clearly been made to one or the other of the parties, making it easy for the court to put each such gift in Gina’s or Edward’s column. When considering that Gina’s father had paid off a credit card debt of $12,500, the court treated the payoff as a gift to both parties because Gina and Edward had both purchased items with the credit card, so that payment of the debt benefited both of them.

As to one gift from Gina’s father, you could say that one critical word (or contraction) made the court regard the gift as having been made to both parties. Gina’s father had given $15,000 towards bricking the jointly owned house and garage. This obviously enhanced the value of the marital home and benefited both Gina and Edward. More than that, there was evidence that when Gina’s father made that particular gift, he had said it was for “ya’ll.” Some outside the South think that “ya’ll” is used below the Mason-Dixon line to refer to one person or more than one. In this instance, though, as in most cases, “ya’ll” was a plural pronoun referring to both Gina and Edward, thus supporting a ruling that the gift had been to them both.

My point in this week’s column is that when dealing with real property or gifts through an estate, it should be done in writing with the help of a professional.  In this case, had an attorney to document the gift in writing, then the father’s intent would have been clear.

When drafting legal documents, you should hire an attorney.  The assistance they provide you will make the matter much easier and clarify the details properly.  In today’s world of chat gbt and AI, there are way too many options to choose from.  If you want certainty that your document properly transfers the property in accordance with your wishes, then an attorney familiar with your jurisdictions laws, customs and requirements is invaluable.

The post “Y’all” Means Marital Property appeared first on Moak & Moak, P.C. -Attorneys At Law.

While the monetary compensation is certainly an important factor for a landowner to consider, the nonmonetary  terms of the easement may be more important and more valuable.  Therefore, it is imperative to document any statement or promise made by the company seeking the pipeline into a written agreement.

Each property is unique, and the following considerations may not apply the same way to different properties because of their specific use and characteristics.  While this list is based on a pipeline easement, these terms may also be helpful in negotiating other easements, such as those for electric or transmission lines, water, wastewater, drainage, or related infrastructure easements.

I will start with a money saving tip.  Because most attorneys bill by a percentage of the increased payment they can negotiate with the pipeline company, a client can make this negotiation easier by doing as much legwork as possible before going to the attorney’s office.  For example, a landowner could collect necessary documents such as the legal description or plat of the property, saving the attorney the time of locating that information.  Another time saver would be for the landowner to prepare a draft of the easement agreement or a list of terms they desire.  This will save time when sitting down with the attorney.

Check on Eminent Domain Authority:

Often the company seeking the pipeline will tell the landowner they have the ability to obtain what they want through eminent domain.  However, you should check to see if the company is validly registered with the State Comproller’s office as having eminent domain power.  Ask the company representative for a copy of the statute that grants them eminent domain power and evidence supporting their claim as a common carrier.  If it is a transmission line, obtain a copy of the company’s Certificate of Convenience and Necessity from the Public Utility Commission.  This will explain what condemnation power the company has and may provide additional information about the proposed project.

Determine Compensation:

Generally, payment is based per rod (a rod is 16.5 feet), per acre or per foot of the pipeline.  Consider seeking payment per square foot rather than per foot or per rod  to be adequately compensated for the entire area the company will use.  It is common for the company to seek a temporary work area, as well, and you should seek compensation for this temporary work area.

It is important to know that Texas courts recognize remainder damages for the decreased value of the remainder of the property outside of the easement strip.  For instance, if a pipeline splits a 10 acre tract, the acreage remaining outside the easement will likely be worth less per acre than if the 10 acres were sold as a whole.

You should also discuss the payment’s tax implications with your CPA or financial advisor.  How the payment is described or structured will make a difference.

The following list of key points may be helpful:

• Seek a Specific Easement
• Seek a Nonexclusive Easement
• Limit Easement to One pipeline
• Determine Pipeline Diameter
• Require a Specific Pipeline Depth
• Request Payment for Damages
• Have a Timber Management Company or Agricultural Consultant evaluate the property
• Have Property Appraised
• Specify Fencing Requirements
• Include Repairs to existing roads
• Determine Maintenance requirements
• Define when the easement will terminate
• State Requirements for Removing Pipe and Facilities
• State Remedies for Violating Agreement
• Include Liability and Indemnification Provisions
• List Landowner as “Additional Insured”
• Do Not be responsible for Warranty of Title
• Limit Terms of Transferability
• Request a Most-Favored-Nations Clause
• Use Choice of Law provision
• Include a Forum Clause

Finally, a licensed attorney familiar with easement negotiation issues should review all pipeline easement agreements BEFORE signing.  Although hiring an attorney who specializes in representing landowners in these type of transactions may be an additional cost, it could save money in the long run by preventing a dispute from arising due to an unclear or inadequate easement agreement.  Additionally, the fee arrangement with attorneys in these matters is usually a contingency fee agreement.  This means the attorney is paid based on the increased amount of compensation they produce for the landowner who’s property is being taken.  So, no cost up front.  You are not likely to stop the pipeline, but you can negotiate what is on your property, possibly where it crosses your property and certainly how much you are paid for the permanent taking of your property.

The post PIPELINE NEGOTIATIONS appeared first on Moak & Moak, P.C. -Attorneys At Law.

Whether you’re sitting on a chest of gold or planning to amass one, knowing how to navigate the estate tax landscape is crucial.  You will need a CPA that can provide the basic understanding of portability for your benefit.

Estate tax, the levy on the transfer of the deceased’s estate, stands as a pivotal consideration in estate planning.  This tax, while federal, affects Texans in profound ways, influencing decisions on estate distribution and planning strategies.  Its purpose, to tax wealth transfers, impacts estate sizes variably, with specific exemptions providing some relief.

The concept of portability within estate tax legislation marks a significant shift in how spouses can manage their combined estate’s tax burden.  By allowing the surviving spouse to inherit any unused federal estate tax exemption from their deceased partner, portability offers a pathway to substantial tax savings.  This mechanism, pertinent under federal law, requires strategic application to maximize its benefits within Texas.

Portability’s benefits, while significant, come with strict eligibility criteria. The Internal Revenue Service (IRS) delineates these, emphasizing the necessity of a timely and accurate estate tax return filing.  For Texans, understanding these criteria is fundamental to leveraging portability effectively, ensuring that no potential tax advantage goes unutilized.  The deadline for filing is 9 months after the date of death.  This deadline can be extended, but again a proper filing must be made by your CPA or tax professional.

The election process for portability involves procedural diligence.  Filing IRS Form 706, a step necessary even when no estate tax is due, embodies this process’s core.  For Texans, adhering to the IRS’s filing deadlines is critical, as any oversight here can negate the opportunity for tax savings.

Married couples in Texas stand to gain a significant benefit from portability.  This provision can mitigate estate taxes dramatically, ensuring a larger portion of the estate benefits the heirs.  Through strategic use of portability, countless Texan families have navigated the estate tax landscape more favorably, securing financial legacies.

If you have recently lost a loved one, you should seek the assistance of an estate attorney with experience in handling estates AND a tax professional.  These two professionals should be able to walk you through the process of transferring assets (probate) and protect any tax protections that you are available.

The post What is Portability? appeared first on Moak & Moak, P.C. -Attorneys At Law.

Each state has its own laws regarding estate planning and real estate. Property laws can vary significantly, affecting everything from the way property titles are held to how estates are taxed and probated. Therefore, the first step in planning your estate is to understand the specific laws that apply in each state where you own property. This may require consultation with estate planning attorneys who are licensed in each respective state to ensure all local regulations are met.

One of the primary challenges of owning property in multiple states is the possibility of having to go through multiple probate processes upon death. Probate can be time-consuming and expensive, particularly if it needs to be conducted in several states. To circumvent this, many estate planners recommend placing the out-of-state property in an limited liability company or perhaps a revocable living trust.

While Texas does not have an estate tax, if you own property in multiple states, you might be subject to estate taxes in each of those states, depending on their laws. Some states have higher estate tax thresholds than others, and a few have no estate taxes at all. Planning strategies might include shifting your domicile to a state with more favorable tax laws or restructuring ownership of properties to minimize the tax burden.

It’s also important to consider the impact of capital gains taxes and how they interact with estate taxes. In some cases, keeping property in the family can lead to significant tax advantages over selling it before death. An estate planning attorney can provide guidance on how to best manage these tax implications.

Organize and maintain detailed records for each property, including deeds, mortgage documents, insurance policies, and a list of all maintenance activities. This documentation will be invaluable for the executor of your estate or the trustee managing the trust.

As laws change and your personal circumstances evolve, so too should your estate plan. Regular reviews and updates will help ensure that your estate plan continues to reflect your wishes and adapts to any new laws or changes in your asset portfolio.

If your estate plan is complex, consider holding a family meeting to discuss your plans and the responsibilities each family member may have. This can help prevent confusion and conflict after your passing, ensuring everyone understands your intentions and the legal landscape.

Owing property in multiple states adds a layer of complexity to estate planning, but with careful preparation and expert advice, you can ensure that your estate is handled smoothly. Limited liability companies, trusts, strategic tax planning, and regular updates are key components of an effective multi-state estate strategy. Consulting with professionals who understand the nuances of multi-state estate planning will provide peace of mind, knowing that your legacy is secure and your wishes will be honored.

The post Ownership of Out of State Property in Estate Planning appeared first on Moak & Moak, P.C. -Attorneys At Law.

Very few folks have an estate worth more than $15,000,000 (or $30,000,000 for a couple).  Texas does not have a separate estate tax or income tax.  Thus, most estates in Texas can be handled through a well written Last Will and Testament.

If you own a business, real estate, farm,  or ranch, this increase to the Federal estate tax exemption amount is important to your estate.  When you consider the value of businesses, real estate, houses, equipment, investment or savings accounts, vehicles, and cattle, an exemption amount lower than $10,000,000 could be a problem.

Before the estate exemption amount was raised, the use of marital deduction trust clause or family limited partnership were the norm for estate planning in those families with substantial assets.  These marital deduction trusts  were commonly used prior to 2001 when the Federal estate tax exemption limit was $600,000.00.

Another beneficial planning tool is to gift a portion of your cash into a trust that purchases a life insurance policy on you, a parent, or a grandparent. That policy is then owned by the trust, and at death the policy pays into the trust—at a rate of two to ten times the size of the original gift. TAX-FREE. Zero tax. Yes, not one penny to Uncle Sam. In fact, that could leave your family with enough to pay the estate tax and give generously to charities and foundations that you love, as well as provide additional resources for your loved ones.

Along with an increase to the estate tax exemption amount, the annual exclusion for gifts was raised to $19,000, per individual in 2025 and into future years.  Parents and grandparents may prefund children’s education through 529 accounts, or paying tutition on behalf of another directly to the school or other educational provider.  If you only are paying tuition, the exemption is limited to just tuition fees and no other educational expenses.  Other options include paying medical expenses, leveraging lifetime gifts, and charitable giving.

In addition to the Federal estate tax exemption, you should pay close attention to the Federal capital gains tax.  This is a tax placed on the appreciated value of real property and investment accounts.  To ensure that your family does not have to pay any capital gains tax, transferring property subsequently after your death is important.  When property is transferred during your life, the gift tax amount is not the only consideration.  By gifting property during your lifetime, you could cause your beneficiary to be in a situation that results in the payment of capital gains taxes of up to 20% of the gain.

Many people are enticed into creating living trusts or revocable trusts.  However, you should meet with an attorney experienced in estate planning to see what is the best vehicle for your estate planning needs in your state.  They should also discuss with you the importance of powers of attorney (financial and medical), advanced directives (aka living wills) and the other associated documents to make sure those you trust are empowered to assist you without putting your assets at risk (i.e., Do NOT list them on your accounts).

The post Estate Tax Exemption in 2025 and Beyond appeared first on Moak & Moak, P.C. -Attorneys At Law.

All too often, land that’s been in a family for decades is sold off and developed, simply because no one made a clear plan for the future. And while farmers and ranchers face unique planning challenges, they’re not the only ones who put off this essential step. Business owners, parents, and property owners all risk losing what they’ve worked hard to build by not taking estate planning seriously.

Below are three common estate planning mistakes agricultural families make—and how to avoid them.

Mistake #1: Putting Off the Plan

One of the biggest challenges farmers and ranchers face is figuring out who gets what—especially when only some children want to stay in the family business. How do you keep things fair without compromising the future of the land and operation?

That indecision often leads to inaction. But skipping the plan entirely leaves your family in a difficult position, with no clear direction on what to do with land, livestock, equipment, or even debt. It’s a common issue, and not just for those in agriculture. The same mistake happens with family homes, investment properties, and small businesses.

The solution? Start now. Estate planning doesn’t have to be all-or-nothing. With the right team—attorneys, accountants, insurance advisors, and financial planners—you can create a plan that reflects your goals and preserves your legacy, even if your situation is complex.

Mistake #2: Using Joint Ownership as a Shortcut

It may seem simple: add a child’s name to the deed and avoid probate, right? Unfortunately, this common move can create more problems than it solves.

Joint ownership comes with legal and financial risks. For farmers and ranchers, it can jeopardize eligibility for USDA programs and subsidies. It also means giving up full control of your property—and once the paperwork is done, reversing it can be expensive and trigger unexpected tax implications.

A better option? Hold land in a trust or a legal entity like an LLC, corporation, or partnership. These tools help you stay in control, reduce liability, and protect your eligibility for benefits—all while keeping your estate planning goals intact.

Mistake #3: Forgetting About Cash Flow

Death and incapacity don’t just bring grief—they bring bills. Medical expenses, long-term care, legal fees, and taxes add up fast. And because most farm and ranch assets are tied up in land, equipment, and livestock, they can’t be easily sold for cash.

When families don’t plan for liquidity, they often end up selling assets quickly and at a loss just to cover immediate costs.

The fix? Build liquidity into your estate plan. This could mean setting up life insurance, a line of credit, or other financial tools. A good estate planning team can also help you explore advanced options like life insurance trusts or structured buy-sell agreements that prepare your family for the unexpected—without forcing them to sell what matters most.

Final Thoughts: Your Land Deserves a Future

Whether you work acres of farmland or manage a ranch, your estate planning needs are personal—and essential. This isn’t just about protecting assets. It’s about protecting a way of life and the people who depend on it.

Consulting with professionals who understand the farming and ranching way of life when estate planning will provide peace of mind, knowing that your legacy is secure and your wishes will be honored.

The post Preserving the Ranching Way of Life appeared first on Moak & Moak, P.C. -Attorneys At Law.

Using your residential property for a business reminds me of the importance of knowing the coverage your homeowners policy provides and the importance of business premises insurance.  Reading and understanding all of the language in a homeowner’s or business liability  insurance policy are not formalities to be skipped over while searching for the signature line.  As with any contract, the fine print can have real and lasting consequences, and its contents will control over any contradictory verbal assurances.  Taking the time to understand the terms of their policies might have headed off bad outcomes for homeowners in two recent cases.

Joan bought property consisting of a home, two barns, and other outbuildings.  She also purchased a homeowners’ insurance policy that excluded coverage for any nondwelling structure that was rented out “unless used solely as a private garage.”  Joan rented the barns to a commercial marina, which used them for storage of customers’ boats.  When one of the barns collapsed due to a storm, Joan submitted a claim for loss of the barn.

The insurer denied coverage, prompting Joan to point out that the rental exclusion should not apply because the marina was using the barn as a “private garage.”  Her point made sense as far as it went, but the insurer won because of a separate exclusion from coverage for any nondwelling “used in whole or in part for business purposes.”  Joan’s main occupation was a financial analyst, and she brought in only a few thousand dollars by renting out the barn.  But all that was necessary for the business purposes exclusion to apply was that the insured regularly engage in the conduct with an intent to profit.

It was significant for the court that, by failing to disclose her conduct, Joan had prevented the insurer from knowing the risks it was insuring.  The purpose of a business pursuits exclusion, after all, is to rule out coverage for a whole set of risks and liabilities flowing from business activity.  It did not matter that the damage to the barn was not caused by the boats that were stored there for profit.

Many of you may have seen or received advertisements for identity theft coverage.  However, if you review your homeowners insurance policy, you may find that it contains coverage for identity fraud expense coverage.  Depending on your specific policy, this could cover credit card and identtity fraud related to the title to your property.  Before signing up for identity theft, sit down and read your current homeowners policy.

You may be surprised to find that you have coverage for loss of refriderated products as well.  With some of our weather events, we lose power.  When this loss of power is extended, then you may lose that deer meat you harvested or that calf you had butchered.  If you have the right kind of coverage in your homeowners policy, you will be covered for these losses.

Before a storm effects you, sit down with your insurance agent to discuss and make sure you have the coverage you want.  When entering a contract, particularly one prepared or furnished by another, it is a good idea to review the document carefully.  A better practice would be to have your attorney review the document for you.  Do not put yourself in the position of reviewing your contract after a problem or claim has arisen.  It may be too late.

The post Read Your Insurance Policy – It is Hurricane Season appeared first on Moak & Moak, P.C. -Attorneys At Law.

Senate Bill 17

SB 17 is one of several measures introduced this session aimed at restricting certain types of foreign ownership of land in Texas. In its most recent version, which passed the House earlier this month, SB 17 would add a new Subchapter H to Chapter 5 of the Texas Property Code, titled “Purchase or Acquisition of Real Property by Certain Foreign Individuals or Entities.” The bill initially passed the Senate in March and has since been amended by the House. Notably, the House version expands the scope of the bill by granting the Governor authority to designate additional countries and transnational criminal organizations whose nationals or entities would be prohibited from acquiring real property in Texas.

Senate Bill 647

SB 647 is one of two bills introduced this session aimed at combating deed fraud. It proposes amendments to Section 51.901 of the Texas Government Code to enhance protections against the fraudulent filing of property-related documents. Specifically, the bill authorizes county clerks to send written notice to the last known property owner when a recorded instrument purports to create a lien or transfer an interest in real property—particularly when the owner’ s address differs from that of the grantor, obligor, or debtor named in the document. Additionally, SB 647 empowers clerks, upon consultation with the district or county attorney, to refuse to file or record a document if there is probable cause to believe it is fraudulent or if the filer fails to provide required supporting documentation as specified in the statute. The bill passed the Senate and was recently reported favorably out of a House committee.

Senate Bill 648

SB 648 is the second of two bills this session aimed at addressing deed fraud. The bill introduces enhanced recording requirements for certain real property instruments, particularly when such documents are filed by individuals or entities other than attorneys, title agents, title companies, or escrow companies that provide closing, settlement, or comparable transaction services. Under SB 648, if an instrument is submitted for recording by someone outside of these professional categories, the following additional requirements must be met: the instrument must be signed by both the grantor and the grantee in the presence of two subscribing witnesses, and all signatures—including those of the witnesses—must be acknowledged. The bill also imposes stricter requirements for filing affidavits of heirship. Specifically, if the affidavit is filed by someone other than an attorney or title-related professional, it must be signed by the affiant and acknowledged by each person named as an heir, again in the presence of two subscribing witnesses. SB 648 would take effect immediately upon receiving a two-thirds vote in both chambers. It has already met that threshold in the Senate and is currently under consideration in the House.

Senate Bill 2550

SB 2550 addresses five statutes that require sellers of real property to provide specific notices to buyers pertaining to the surface estate, which do not extend to the mineral estate or associated water rights. While current law exempts transactions involving the sale of mineral rights from these notice requirements, it does not provide a similar exemption for the sale of groundwater or surface water rights. SB 2550 corrects this inconsistency by extending the exemption to include transactions involving only groundwater or surface water rights. The bill has passed both chambers of the Legislature and was sent to the Governor for signature on May 13.

Once the 89^th Regular Session of the Texas Legislature ends, a comprehensive report will be prepared for all the changes made in this session.  To view the full text of these and other bills, please visit the Texas Legislature Online (TLO) website.

The post Real Estate Matters In The 89th Regular Session appeared first on Moak & Moak, P.C. -Attorneys At Law.

In Texas, water rights depend on whether the water is groundwater or surface water.

Generally, Texas law has held that groundwater belongs to the landowner. Groundwater is governed by the rule of capture, which grants landowners the right to capture the water beneath their property. The landowners do not own the water but have a right only to pump and capture whatever water is available, regardless of the effects of that pumping on neighboring wells.

Surface water, on the other hand, belongs to the state of Texas. It can be used by a landowner only with the state’s permission.

Groundwater

Water found below the earth’s surface in the crevices of soil and rocks is called percolating water or, more commonly, groundwater. Texas groundwater law is judge-made law, derived from the English common law rule of “absolute ownership.” Groundwater belongs to the owners of the land above it and may be used or sold as private property. Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land.

Because of the seemingly absolute nature of this right, Texas water law has often been called the “law of the biggest pump.” Texas courts have consistently ruled that a landowner has a right to pump all the water that he can from beneath his land regardless of the effect on the wells of adjacent owners. The legal presumption in Texas is that all sources of groundwater are percolating waters as opposed to subterranean rivers. Consequently, the landowner is presumed to own underground water until it is conclusively shown that the source of supply is a subterranean river.

The law with respect to ownership of subterranean rivers is not settled in Texas. Both stream underflow and subterranean rivers have been expressly excluded from the definition of underground water in Section 52.001 of the Texas Water Code.

The practical effect of Texas groundwater law is that one landowner can dry up an adjoining landowner’s well and the landowner with the dry well is without a legal remedy. Texas courts have refused to adopt the American rule of “reasonable use” with respect to groundwater.

Winds of change are blowing with regard to groundwater.  The case of Cactus Water Services LLC v COG Operating LLC is now before the Texas Supreme Court.  At the root of the case is who owns produced water.  This case will determine whether or not produced water from oil and gas drilling belongs to the landowner.

Produced water is the water that is comes back up out of the well bore as the well is completed.  Produced water is highly concentrated with salt and chemicals from the fracking process, thus making it harmful to fresh groundwater supplies as well as fields and pastures used for agricultral production.

Produced water must be handled carefully to make sure it does not spread out on the surface and leach or migrate back into the ground.  That much salt on property will kill the grass for a long period of time.  Thus, produced water has been a 100% waste product and almost all of it has been traditionally, injected back into deep formations through injection wells.

Technological advances have transformed  produced water from a waste product into a potentially valuable resource.  Therefore, now we have disputes over ownership of this water.

The importance of Cactus Water Services LLC v COG Operating LLC is that the Texas Supreme Court (TSC) will now decide whether this produced water belongs to the landowner or the oil and gas company.  Over 14 briefs have been filed with the TSC from different entities.  Some on behalf of the oil and gas companies and some on behalf of the landowners.

You don’t have to wait and see how the TSC answers this issue.  You should be thinking ahead, particularly if you enter new oil and gas leases.  These leases should have provisions clearly addressing the ownership of produced water and any associated royalties.  Even if the TSC determines the oil and gas companies own the produced water, there is a way to contract in your oil and gas lease to ensure that you, the landowner, get a royalty and a revenue back.

The post Groundwater in Texas appeared first on Moak & Moak, P.C. -Attorneys At Law.

While the monetary compensation is certainly an important factor for a landowner to consider, the nonmonetary  terms of the easement may be more important and more valuable.  Therefore, it is imperative to document any statement or promise made by the company seeking the pipeline into a written agreement.

Each property is unique, and the following considerations may not apply the same way to different properties because of their specific use and characteristics.  While this list is based on a pipeline easement, these terms may also be helpful in negotiating other easements, such as those for electric or transmission lines   (Entergy Reedy Creek project), water, wastewater, drainage, or related infrastructure easements.

I will start with a money saving tip.  Because most attorneys bill by the hour, a client can save considerable fees by doing as much legwork as possible before going to the attorney’s office.  For example, a landowner could collect necessary documents such as the legal description or plat of the property, saving the attorney the time of locating that information.  Another time saver would be for the landowner to prepare a draft of the easement agreement or a list of terms they desire.  This will save time when sitting down with the attorney.

Check on Eminent Domain Authority:

Often the company seeking the pipeline will tell the landowner they have the ability to obtain what they want through eminent domain.  However, you should check to see if the company is validly registered with the State Comproller’s office as having eminent domain power.  Ask the company representative for a copy of the statute that grants them eminent domain power and evidence supporting their claim as a common carrier.  If it is a transmission line, obtain a copy of the company’s Certificate of Convenience and Necessity from the Public Utility Commission.  This will explain what condemnation power the company has and may provide additional information about the proposed project.

Determine Compensation:

Generally, payment is based per foot, per acre or per rod (a rod is 16.5 feet) of the pipeline.  Consider seeking payment per square foot rather than per foot or per rod  to be adequately compensated for the entire area the company will use.  It is common for the company to seek a temporary work area, as well, and you should seek compensation for this temporary work area.

It is important to know that Texas courts recognize remainder damages for the decreased value of the remainder of the property outside of the easement strip.  For instance, if a pipeline splits a 10 acre tract, the acreage remaining outside the easement will likely be worth less per acre than if the 10 acres were sold as a whole.

You should also discuss the payment’s tax implications with your CPA or financial advisor.  How the payment is described or structured will make a difference.

The following list of key points may be helpful:

• Seek a Specific Easement
• Seek a Nonexclusive Easement
• Limit Easement to One pipeline
• Determine Pipeline Diameter
• Require a Specific Pipeline Depth
• Request Payment for Damages
• Have a Timber Management Company or Agricultural Consultant evaluate the property
• Have Property Appraised
• Specify Fencing Requirements
• Include Repairs to existing roads
• Determine Maintenance requirements
• Define when the easement will terminate
• State Requirements for Removing Pipe and Facilities
• State Remedies for Violating Agreement
• Include Liability and Indemnification Provisions
• List Landowner as “Additional Insured”
• Do Not be responsible for Warranty of Title
• Limit Terms of Transferability
• Request a Most-Favored-Nations Clause
• Use Choice of Law provision
• Include a Forum Clause

Finally, a licensed attorney familiar with easement negotiation issues should review all pipeline easement agreements BEFORE signing.  Although hiring an attorney who specializes in representing landowners in these type of transactions may be an additional cost, it could save money in the long run by preventing a dispute from arising due to an unclear or inadequate easement agreement.  Additionally, the fee arrangement with attorneys in these matters is usually a contingency fee agreement.  This means the attorney is paid based on the increased amount of compensation they produce for the landowner who’s property is being taken.  So, no cost up front.

The post PIPELINE NEGOTIATIONS appeared first on Moak & Moak, P.C. -Attorneys At Law.