Defensible Title: Curative Requirements and Waiver in Acquisitions and Drilling Title Certifications

Defensible Title: Curative Requirements and Waiver in Acquisitions and Drilling Title Certifications Presented by: Kevin L. Colosimo & Grant H. Hackley 2014 Burleson LLP

MARKETABLE TITLE A title that a reasonable buyer would accept because it appears to lack any defect and to cover the entire property that the seller has purported to sell A marketable title imports such ownership as insures to the owner the enjoyment/control of the land, as against all others. It should appear certain that the title will not be called into question in the future, so as to subject the purchaser to the hazard of litigation - it must embrace the entire estate sold. There exists an assumption that certain title defects are acceptable, provided that they do not create any likely risk of future litigation

DEFENSIBLE TITLE There is no legally accepted meaning for defensible title, so it necessarily must be defined in each transaction. However, defensible title has generally been defined as: Something less than marketable title; it is imperfect on the record, but is still possible to defend. It is generally understood that defensible title is a lower standard than marketable title ; but is commonly the best standard one might expect in an oil and gas title. Defensible title is a defined term in every Purchase and Sale Agreement (PSA) but its definition is usually dependent upon the definitions of Permitted Encumbrances and Title Defects.

Defensible Title: Drilling Title Opinion vs. Purchase Sale Agreement I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Drilling Title Measures? Defensible Title is somewhat of a moving target and a measurement of each operator s risk tolerance at any given moment. Opinion Purchase Sale Defensible Title is always determined from the defined terms in the PSA. Agreement

Typical PSA Terms/Provisions I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Measures? DEFENSIBLE TITLE I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Measures? PERMITTED ENCUMBRANCES I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Measures? TITLE DEFECT

Defensible Title: Specific Issues and Analysis

Issue #1 Trusts: Grantor conveyed Subject Land to a trust. The trust agreement is unrecorded. Trustee executes a lease on behalf of the Trust.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Trustee's ability to execute the lease on behalf of the trust. Pennsylvania: Uniform Trust Act, but settlors may limit powers of a trustee. 20 Pa.C.S. 7770 et seq. Ohio Title Standard 3.18: place of record either (1) excerpts of the operative provisions, together with an affidavit that it is a true copy of the trust agreement, or (2) a Memorandum of Trust pursuant to O.R.C. 5301.255, setting forth (a) the name and address of trustee, (b) date of execution, (c) powers specified in trust relative to encumbering of real property by trustee, and (d) restrictions on those powers.

Curative Measures Obtain and record excerpts of the operative provisions of the trust agreement, together with an affidavit that it is a true copy of the text in the trust agreement; Obtain and record a Memorandum of Trust pursuant to O.R.C. 5301.255; or Waive defect Best Practices?

Issue #2 Fee Ownership of Minerals Underlying Roadways: Pursuant to Highway Plan Authorizing Condemnation of Right-of-Way and Roadside Rest dated October 15, 1968, Grantors conveyed 16 acres as a right of way to the Commonwealth of PA, Department of Highways. Grantors lease the entire 16 acres to Operator.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Can impact whether adjacent landowner owns fee simple estate underlying roadway and net acreage calculation. Also can alter horizontal drilling footprint. In Pennsylvania, the filing of a Highway Plan provides authority for taking, but generally the property is not taken until a Declaration of Taking is filed. Only in rare circumstances did the Department of Highways obtain land in fee simple with an absolute right of support. Prior to 1979, PennDOT could obtain property in fee simple only by grant, not by condemnation, except for rest areas and limited access expressways. In Ohio, roadways located within an incorporated village are considered "municipal roads. When a municipal road is dedicated by the owners, the municipal corporation has a fee title, but it is a qualified or determinable fee interest, limited to the purposes set forth in the Plat that dedicated the roadway. Accordingly, whether the oil and gas underlying a municipal roadway belongs to the municipality or the adjacent landowner depends upon the language in the dedication.

Curative Measures For a Pennsylvania highway, as a protective measure, obtain a protective lease from PennDOT covering their interest in the oil and gas underlying the Subject Land, or, in the alternative, obtain a quitclaim deed as to the oil, gas and other minerals. For municipal roadways in Ohio, review dedication and determine ownership claim by municipality. Best Practices?

Issue #3 Flat Well Royalty to the Extent It Does Not Meet Mandatory Minimum Royalty Requirement: A 1901 West Virginia lease provides one-eighth oil royalty and gas royalty of $300 per year per well drilled on premises.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Lease is invalid to the extent it does not provide mandatory minimum royalty. To the extent that said royalty-paying well requires a future request for permits pertaining to operating, drilling to deeper depths, etc., the flat well royalty will be deemed inapplicable. Payment of a minimum 1/8 is required pursuant to: West Virginia Code 22-6-8; Pennsylvania 58 P.S. 33.3; Ohio does not have minimum royalty statute, though one has been proposed.

Curative Measures Amend and ratify the lease; or Obtain new lease. (Not applicable in Ohio) Best Practices?

Issue #4 Reservation to a Stranger to Title: By deed dated October 5, 1995, A, as sole owner of Subject Land, conveys land to B, reserving a life estate to C and D. Subsequently, B, C and D give leases.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Not a Defect Cloud under on Title PSA Requiring and still Requiring Curative Curative Measures? Measures? Implications? Cannot reserve an interest to a party that is greater than that interest the party already possesses. If C and D are strangers to title, the reservation contained in a conveyance to a third party does not vest them with an interest.

Curative Measures Depends on the situation Disregard interest; or Quiet title action if lease taken by stranger. Best Practices?

Issue #5 Affidavits in Aid of Title: By deed dated June 1, 1964, Doris conveyed the Subject Land to Doris, as Trustee of the Doris Trust. The deed does not provide the marital status of Doris. Pursuant to Affidavit of Title dated June 1, 2013, Doris was an unmarried woman at the time of the 1964 conveyance.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? As to the marital status recital, pursuant to Ohio Title Standard 3.6, the omission of a marital status recital is a defect when the deed has been of record for less than fifty years, in the absence of notice of subsequent facts indicating the contrary.

Curative Measures Waive defect; or If a recent defect, obtain quit claim deeds Best Practices?

Issue #6 Ohio Severance of Oil and Gas and the DMA: By deed dated January 2, 1951, A conveys the surface of the Subject Land to B, excepting and reserving the oil and gas. A dies on September 21, 1976, and by certificate of transfer, the entirety of his estate passed to his sole surviving child, C. The certificate of transfer did not identify the oil and gas underlying the Subject Land as an estate asset. In 2012, B's successors execute an oil and gas lease.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Not a Defect Cloud under on Title PSA Requiring and still Requiring Curative Curative Measures? Measures? Implications? Under the 1989 DMA, any mineral interest [other than coal] held by any person, other than the owner of the surface of the lands subject to the interest, is deemed abandoned and vested in the owner of the surface, if there is no "savings event within the preceding 20 years. (Separate issue: does the Certificate of Transfer qualify as a savings event?). The 1989 DMA provided for a 20 year look back period, plus a 3 year redemption period. As a result, for any reservation prior to March 22, 1969, the look back period is from March 22, 1992, to March 22, 1969. If no savings event is identified within this 23 year period, the oil and gas is vested in the owner of the surface estate as of March 22, 1992. If a savings event is identified within the 23 year period, then title remains vested in the severed mineral interest "holder" for at least 20 years from the filing date of the savings event. The 1989 DMA 20 year look back period likely also applies to certain severances occurring after March 22, 1969; however, the abandonment date of the mineral interest would be adjusted accordingly (i.e., 20 years after the date of severance). The 1989 DMA was amended as of 2006, and provides specific procedure that must be followed before a severed mineral interest will be deemed abandoned. Specifically, the 2006 DMA requires certain filings or notifications on behalf of the surface owner. In the matter of Walker v. Noon, 2014 Ohio 1499 (April 3, 2014), the Ohio Court of Appeals - 7th District held, among other things, that the 2006 DMA could not be applied retroactively. Thus, the 2006 DMA would apply to any expiration of the 20 year look back period occurring on or after June 30, 2006.

Waive defect; Curative Measures Institute quiet title action; or Hold payments in abeyance until resolution of quiet title litigation and/or appellate litigation on DMA procedures? Best Practices?

Issue #7 Unrecorded Deed: A deed recorded in 1982 recites an unrecorded deed in 1975.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Gap in chain of title. Implications? Pennsylvania's ancient deed rule (i.e., a deed more than 30 years old) holds that recitals in ancient deeds, where possession accompanies the deed, are prima facie evidence of the facts recited.

Waive defect; Obtain quitclaim deeds; or Institute quiet title action. Curative Measures Best Practices?

Issue #8 Rights to minerals Underlying Water Abutting or Crossing the Subject Land: Scenario 1 - West Virginia Deed calls to property boundaries to center of the river. Scenario 2 - Navigable waterway runs through Pennsylvania tract. In each case the mineral lease purports to cover the riverbed.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Not a Defect Cloud under on Title PSA Requiring and still Requiring Curative Curative Measures? Measures? Implications? In West Virginia, The Public Land Corporation of West Virginia owns the title to the bed of all navigable rivers and streams within the boundaries of West Virginia, between the low-water marks. West Virginia recognizes three classes of navigable streams: (1) tidal streams, that are held navigable in law, whether navigable in fact or not; (2) those that, although nontidal, are yet navigable in fact for boats or lighters and susceptible of valuable use for commercial purposes; (3) those streams which, though not navigable for boats or lighters, are floatable, or capable of valuable use in bearing logs or the products of mines, forests and tillage of the country they traverse to mills or markets. Campbell Brown & Co. v. Elkins, 93 S.E.2d 248 (W.Va. 1956). The determination is a question of fact, which requires investigation of historical usage. In the event the river is deemed to be navigable, the adjacent landowner would own in fee all land to the low-water mark. In Pennsylvania, the DCNR claims oil, gas and minerals underlying navigable waterways, meaning almost any waterway that has ever been used as a broad highroad for commerce. Pennsylvania Power & Light Co. v. Maritime Management, Inc., 693 A.2d 592 (Pa.Super. 1997); United States v. Appalachian Electric Power Co., 311 U.S. 377, 408 (1940).

Curative Measures Determine whether the waterway is navigable and, if so, obtain a low-water mark survey. Obtain protective lease from state entity, or hold acreage in suspense. Best Practices?

Issue #9 Pennsylvania Title Wash: By deed dated May 11, 1886, grantor conveyed unseated surface tract of 400 acres in northeastern Pennsylvania to grantee, reserving minerals, oil and gas. Surface owner lets land go to tax sale in 1908, and land is purchased by straw party, who then conveys to surface owner or related party.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Creates competing parallel claims to oil and gas under severed interest and that purchased at tax sale. Often severed parties received no notice of tax sales. Title washing effectively wiped out the prior outstanding exceptions and reservations of oil, gas, and mineral rights and by the process vested the surface owner with the interests previously reserved. See Proctor v. Sagamore Big Game Club, 166 F. Supp. 415 (W. D. Pa 1958), affd, 265 F.2d 196 (3d Cir 1959); Moore v. Commonwealth of Pennsylvania DEP, 566 A2d. 905 (Pa. Commw. Ct. 1988).

Curative Measures Obtain quitclaim deeds; Obtain protective leases; or Institute quiet title action. Best Practices?

Issue #10 Unleased Depths: Pursuant to a Memorandum of Oil and Gas Lease, Lessors leased only those depths one thousand feet below the stratigraphic equivalent of the base of the Speechly Sandstone Formation.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Does the restriction involve the target area for drilling? Lease description was interpreted by title examiner to cover a depth of only a single foot of shale. Current lease leaves other depths open to competing leases. Trespass as to unleased depths.

Curative Measures Obtain new lease (with release of current lease); or Amend current lease. Best Practices?

Issue #11 Stranger to Title Conveyance: Party without any ownership interest purports to convey an interest in the Subject Land by deed to another.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Presents a cloud of title depending on the state. In Pennsylvania and West Virginia, the conveyance is given no effect. In Ohio, the applicable title standard (3.13) notes that a stray deed does not create a cloud "unless its recitals or other known circumstances are sufficient to put a purchaser on inquiry. Other known circumstances should include the passage of time and consideration of the Ohio Marketable Title Act (R.C. Sec. 5301.47 et seq.)"

Curative Measures Waive defect; or Institute quiet title action. Best Practices?

Issue #12 Dunham Rule and Severance of Oil and Gas vs. Minerals: By deed, grantors conveyed all the coal, coal oil, fire clay and other minerals to grantees, the successors of whom are ultimate lessors.

I. Defect under PSA? OR Not a Defect under PSA and still Requiring Curative Defect under PSA? Measures? OR Cloud on Title Requiring Curative Measures? Implications? Under well developed and long-standing law in Pennsylvania, the reservation of "minerals" creates a rebuttable presumption that the parties did not intend to reserve the oil or gas rights. See Dunham & Shortt v. Kirkpatrick, 101 Pa. 36 (1882) (the "Dunham" rule). Furthermore, a conveyance or reservation of "oil and other minerals" creates a presumption that the parties did not intend to convey or reserve the gas rights, and vice versa. See Bundy v. Meyers, 94 A.2d 724 (Pa. 1953). See generally Butler v. Charles Powers Est., 65 A.3d 885 (Pa. 2013) (reaffirming Dunham). Comparatively, in West Virginia and Ohio, reference to "minerals" is sufficient to sever the oil and gas. Still being litigated in Pennsylvania.

Curative Measures In Pennsylvania, for the foregoing situation, obtain a quitclaim deed or protective lease from grantors successors. We note that "coal oil" is a specific type of oil used in kerosene production and, as such, does not include the applicable crude oil. Best Practices?

Questions? Comments? Houston Pennzoil Place 700 Milam Street Suite 1100 Houston, TX 77002 T: 713.358.1700 F: 713.358.1717 San Antonio Weston Center 112 East Pecan Suite 700 San Antonio, TX 78205 T: 210.820.2625 F: 210.820.2609 Midland Midland Tower 223 W. Wall Street Suite 400 Midland, TX 79701 T: 432.253.8600 F: 432.253.8601 Pittsburgh Southpointe Town Center 1900 Main Street Suite 201 Canonsburg, PA 15317 T: 724.746.6644 F: 724.746.6645 Denver Wells Fargo Center 1700 Lincoln Street Suite 1300 Denver, CO 80203 T: 303.801.3200 F: 303.801.3201