On this OGL, it states, “This agreement is entered into this ___day of ____, between ____ and ____, husband and wife, whose address…”
Does this language indicate possession of the mineral rights to be Community Property of the husband and wife?
Unless otherwise stated, there is a Presumption of Community.
If, for example, the lands were the separate property of the husband and both lived on the property and it was their homestead, both would have to sign to have a lease on which the Lessee could operate.
To correctly style a lease where the Mrs. joins in the execution because it is separate property, the clause should read somewhat along the following language:
“This agreement is entered into this 18th day of August, 2020, by and between John Doe, dealing herein in his separate property and joined herein pro forma by Jane Doe, his wife, whose address is 214 Lovers Lane, Austin, Texas 7XXXX”
Best wishes,
Buddy Cotten
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Thank you, Buddy Cotton. It was their Homestead (The Home Place), they made two leases with the “Community Property” language, they remained married to each other their whole life, no documents were filed to indicate it reverted back to Separate Property. Would the property then continue to be Community Property after their death? If so, my Mother’s Gift Deed preserves half of the minerals to be passed down to our descendants. Otherwise, they are lost.
You need to have all the related information, deeds, wills, etc reviewed by an attorney who understands Texas law relating to community and separate property. If the land was separate property of one spouse, such as acquired by gift or inheritance or acquired before marriage, then it would not necessarily have been converted into community property based on the phrasing of an oil and gas lease. This can be complicated and depends on all the facts and circumstances.
Thank you TennisDaze. One thing for certain, it is ambiguous. So, it could have been converted to Community Property, but not necessarily? What does that phrasing, “This agreement is entered into this ___day of ____, between ____ and ____, husband and wife, whose address…”, do? Why would my brother have received bonus payment indicating that it was considered as Community Property?
The lease language was likely drafted by the oil company landman and includes both spouses to be sure that the lease covered the minerals whether separate or community property. No one knows from the lease what the character of the minerals was or how your parents viewed the ownership. It is probably fair to say that the majority of mineral owners sign leases without legal advice and consideration of all the phrasing. You cannot read the lease language by itself and determine the character of the ownership. Your attorney must look at the deed into your father and/or mother as well as other legal documents and all the facts and circumstances to determine whether it was separate or community property. The fact that your brother signed a lease does not prove the character one way or the other. The landman may have taken leases from him and from the heir/purchaser from your father or mother to cover all bases. The later drilling title opinion will be issued by a title attorney reviewing the deeds, etc. Even then, that attorney may tell the oil company that there is ambiguity which must be settled between the parties. Very often, there are no easy answers to legal questions.
Thank you again TennisDaze. It being an inheritance and the only thing we could hope to retain of our family home, since it has been sold, saddens me greatly to think of it just slipping away. However, good advice. I think I’ll just let it lie and see what happens. At least I have tried.
This situation should not be that complicated. Review the documents pursuant to which one or more of the parents acquired the property, any documents that may relate to gifts, and how the property was disposed of at their respective death, whether by wills or intestacy. Obviously some more facts are necessary such as date of marriage of the parents and the order of death of the parents. A lease does not change the character of the property.
Married Husband was gifted property from Parent, but only husband’s name was on deed. Warranty Deed has language “…for and inconsideration of the sum of $10…” Was it Separate or Community Property?
If the property was acquired by gift, the property would be the grantee’s separate property. Based on your facts, the deed language was not done the correct way, but if the grantee did not actually provide community funds for consideration, and property was given, then separate property. Party claiming property in Texas is separate property has burden of proof. The better form of deed would have been a gift deed reciting for the love and affection. For a more definitive answer have an attorney review the document.
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