Table of Contents See also Summary of Contents on the previous page.

Transcription

1 Table of Contents See also Summary of Contents on the previous page. Chapter One: A Primer on the Automatic Termination Rule... 1 Robert J. Burnett, Esquire I. Fee Simple Determinable Estate... 3 A. The Habendum Clause... 3 B. Hallmark of Fee Simple Determinable Estate... 4 C. Termination of the Fee Simple Determinable Estate... 5 II. Pennsylvania Follows the Automatic Termination Rule... 6 IV. Termination of Gas Lease Chart... 8 Chapter Two: Debunking the Myths Surrounding Natural Gas Title Washing: How Can One s Title Be Divested If Natural Gas was Not and Cannot Be the Subject of a Proper Real Estate Tax Assessment?... 9 Ronald L. Hicks, Jr., Esquire I. Introduction II. Brief History of Pennsylvania Real Estate Tax Laws and the Taxation of Natural Gas Interests III. The Title Wash Concept IV. Application of Title Wash to Natural Gas Interests V. Misapplication of Title Wash to Natural Gas Interests VI. Conclusion Appendix A: Meske v. Hull, Crary, et al Submitted by: Ronald L. Hicks, Jr., Esquire Appendix B: Herder Spring Hunting Club v. Keller, et al Submitted by: Ronald L. Hicks, Jr., Esquire Appendix C: Bailey v. Elder, Hoyt, et al Submitted by: Ronald L. Hicks, Jr., Esquire Chapter Three: PowerPoint: Mortgage Lending and the Marcellus Shale Steven M. Regan, Esquire I. What We Will Cover II. Residential Real Estate xi

2 III. IV. A. Title Exceptions and Impediments (Freddie Mac) B. Title Exceptions and Impediments (Fannie Mae) C. Release of Oil, Gas or Mineral Rights D. Unauthorized Oil and Gas Lease Affect of Oil and Gas Leases on Lender s Real Estate Collateral: Nature of the Lease and Specific Lease Terms A. Nature of Oil and Gas Leases B. Nature of Oil and Gas Lessee s Interest in Surface Estate C. Lease Terms that Affect the Landlord s Surface Estate and Lender s Collateral D. The Leasing Clause The Standard Leasing Clause A Typical Leasing Clause E. The Lease Term (Habendum) Clause F. What Constitutes Operations (Construction Against Forfeiture) G. Liens (Subrogation) Due Diligence Issues and Considerations: Does Oil and Gas Leasing Change a Lender s Real Estate Due Diligence? A. Due Diligence Issues B. Title and Title Insurance C. Survey Due Diligence D. Environmental Due Diligence E. Appraisal Issues F. Zoning Diligence V. Underwriting Considerations: Information to Obtain from the Borrower at the Application Stage and Beyond A. Oil and Gas Lease Underwriting Issues for Lenders C. Underwriting Considerations D. The Executive Right E. Mortgage Terms G. Security Interest in Surface Owner s Royalty Another Change of Form Problem? VI. Underwriting Scenarios and Considerations: Underwriting, Diligence and Loan Documentation Issues and Recommendations A. Mortgagor/Lessor Requests Consent to an Oil and Gas Lease: Consenting with Confidence Borrower Requests Consent to an Oil and Gas Lease Consent or Reject? B. Mortgagor/Lessor Requests Subordination of Mortgage to Lease: Is the Lease a Default Under the Terms of the Loan? Borrower or Lessee Seeks Mortgage Subordination Diligence Loan Documents Subordination Options E. Foreclosure and Bankruptcy: Fee Mortgage Default and Affect on Oil and Gas Lease Foreclosure xii

3 2. Bankruptcy Oil and Gas Lease is an Unexpired Lease under PA Law Unexpired Lease Under Executory Contracts Under 365 of the Bankruptcy Code VII. Contact Information Appendix A: Freddie Mac Single-Family Seller/Servicer Guide 39.4: Acceptable Exceptions to Title Insurance or to Attorney s Opinion of Title (10/06/06) Appendix B: Fannie Mae Single Family/ 2012 Servicing Guide III, 702: Release of Oil, Gas, or Mineral Rights (01/31/2003) Appendix C: Fannie Mae Single Family/ 2013 Selling Guide B7-2-05, Title Exceptions and Impediments (04/09/2013) Appendix D: Fannie Mae Uniform Security Instrument for Transfer of Rights Appendix E: Fannie Mae Multifamily Asset Management Delegated Transactions Form Appendix F: Fannie Mae s Example of a Reservation of Rights Letter Appendix G: Excerpt from Commercial Mortgage Document that Includes the Executive Right as Part of the Mortgaged Property Appendix H: Prohibition of Leasing Mineral, Oil and Gas Rights Rider Appendix I: Ohio Revised Code: Title XV Transfer or Assignment of Oil and Gas Lease; Notice; Persons Liable After Transfer; Effect of Foreclosure Chapter Four: PowerPoint: Oil & Gas Transactions: Due Diligence Matthew I. Moses, Esquire I. Overview II. Areas of Focus III. Title Review IV. Lease Review V. General Corporate Review VI. Environmental Review xiii

4 VII. Final Report Chapter Five Section One: Mediation in Oil and Gas Law Disputes Lisa C. McManus, Esquire I. Introduction to ADR II. Benefits of Mediation III. Federal Court Mediation IV. The Benefits and Challenges of Mediation of Oil and Gas Law Disputes V. Conclusion VI. Recommended Reading Chapter Five Section Two: Arbitration from an Industry Perspective Andrew G. Jenkins, Esquire I. Advantages of Arbitration II. Drawbacks to Arbitration III. Early Neutral Evaluation IV. Conclusion Chapter Six Section One: Cybersecurity for Attorneys: Understanding the Ethical Obligations David G. Ries, Esquire I. Introduction II Ethics Rules III. Ethics Opinions IV. Information Security Basics V. Reasonable Safeguards VI. Conclusion VII. About the Author Chapter Six Section Two: Ethics in Leasing in the Marcellus Shale Play David G. Ries, Esquire I. Introduction II American Bar Association Developments and Resources III. Multijurisdictional Practice xiv

5 IV. Doing Business with Clients V. Special Fee Arrangements VI. Joint Representation VII. Conclusion VIII. Information Sources xv

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