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Normally, this blog discusses Texas court cases and decisions. However, occasionally, a court decision from one of our sister states is of interest. Such is the case with Briggs v. Southwestern Energy Production Co., 184 A.3d 153 (2018). In Briggs, the Pennsylvania Superior Court — equivalent to our Texas Courts of Appeal — held that a claim for subsurface trespass may be maintained as a result of hydraulic fracturing and that the “rule of capture” does not preclude the cause of action. This is, of course, directly at odds with the rule here in Texas established by Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex.2008). As a reminder, the Coastal Oil decision was a 6-3 split decision by the Texas Supreme Court. As one might expect, the Briggs opinion discussed Coastal Oil at length but concluded that the dissenters in Coastal Oil had the better arguments.

Briggs is another example that oil and gas law is changing — slowly — to reflect the fact that extracting petrochemicals from shale formations is different from extracting petrochemicals from older, more traditional oil fields. In this respect, Texas law is changing, too, as is evidenced by the recent Supreme Court case in Adams v. Murphy Exploration & Production Co.- USA, Case No. 16-0505 (Tex. 2018). In Adams/Murphy Exploration — involving offset wells — the Court highlighted the differences between vertical drilling into an underground reservoir and horizontal drilling into and using hydraulic pressure to extract oil/gas from a shale formation. With a reservoir, oil and gas will migrate across property lines towards any low pressure area created by a production well. However, there is no such migration in shale formations. Partly because of this difference, the Adams/Murphy Exploration court ruled that an offset well satisfied the requirements of the pertinent lease.

Briggs: Facts of Case and Court’s Reasoning

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Last summer, we wrote about an interesting case involving offset wells and covenants (both implied and express) to prevent drainage in shale formations. As discussed in our earlier article, the San Antonio Court of Appeals reversed summary judgment for Murphy Exploration and remanded the case back to the trial court. However, the Texas Supreme Court recently reversed that decision on a close 5-4 decision. See Adams v. Murphy Exploration & Production Co.- USA, Case No. 16-0505 (Tex. 2018). You can read the dissenting opinion here.

At issue was whether Murphy Exploration violated its lease with the plaintiff landowners by drilling an offset will that was drilled 1,800 feet away from the pertinent lease line and 2,100 feet from the triggering well on the neighboring property.

The oil & gas lease between the parties required the drilling of an offset well if a producing well was drilled on a neighboring tract. A well was drilled on a neighboring tract and Murphy Exploration then drilled a new well on the leased tract, which it claimed was the required offset well. As noted, the new well was 2,100 feet from the neighbor’s wellhead and 1,800 feet from the property line. In many cases, a well so far from the neighboring well would not have prevented drainage to the neighboring well. The plaintiff did not believe it did, and brought suit claiming that the well drilled by Murphy Exploration did not constitute an “offset well” as that term is defined and understood in the gas and oil industry. The lease between the parties did not define the term “offset well.”

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The recent Court of Appeals case of Lackey v. Templeton, 2018 WL 3384570 (Tex. Civ.App. — Beaumont, no pet.), provides another illustration of the legal principle that, in Texas, if you are challenging who owns certain real property, you MUST bring a trespass-to-try-title claim. No other cause of action — such as a declaratory judgment action — will suffice. This is in contrast to a recent Texas Supreme Court case — Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018) — in which the Supreme Court held that a declaratory judgment action WAS allowable because the dispute in that case concerned easement rights — not ownership rights.

Texas Property Law: Challenging Ownership

In Texas, causes of action for challenging or asserting ownership of real property — including ownership of mineral estates — are governed by statute. In this regard, Section 22.001(a) of the Texas Property Code states that a “trespass to try title action is the method of determining title to lands, tenements, and other real property.” See Tex. Prop. Code § 22.001(a). Texas courts have interpreted this provision to mean that a trespass-to-try-title cause action is the exclusive remedy for resolving competing claims to ownership of real property.

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A recent decision handed down by the U.S. Fifth Circuit of Appeals makes it clear that great care should be taken with how the consideration clause of Texas oil and gas leases are drafted. The case of In the Matter of: Goodrich Petroleum Corporation, 894 F3d 192 (5th Cir.) illustrates that you should NOT use the standard verbiage with respect to consideration paid if additional consideration for the lease is due. The additional consideration should be fully described, thereby providing notice of record to third parties of the additional consideration due.

Often, almost as a matter of rote, Texas oil and gas leases use language similar to this:

“NOW, THEREFORE, for the promises and covenants exchanged below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree …”

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In re Keenan is a recent case where a party was successful in obtaining a review of ballots for a homeowner’s association vote to amend its architectural rules. Keenan was a member of a Homeowner’s Association (HOA) in her neighborhood, and was sued by the HOA over improvements that she had made to her property. According to the HOA, Keenan’s improvements exceeded a limit on impervious cover in violation of an HOA rule amendment enacted by a vote in 2006. Keenan believed the rule was not properly enacted and questioned whether there were a sufficient number of votes to approve the HOA rule amendment.

Keenan requested copies of the votes from the 2006 vote through discovery, but the trial court would not permit her to review them on the grounds that the ballots were confidential under Property Code 209.00594(c) which states that only a person qualified to tabulate votes in a property owners’ association election “may be given access to the ballots.” The court did allow  Keenan’s lawyer to review the ballots, but in order for Keenan’s lawyer to testify about the accuracy of the vote, he would have to be a witness, which is a violation of the Texas Disciplinary Rules of Professional Conduct.

Since Keenan was prohibited by a court order from seeing the 2006 HOA vote ballots and submitting them as evidence to prove there had been an insufficient vote, and her lawyer was prevented by the court from testifying about the ballots by professional ethics, Keenan sought a writ of mandamus from the Texas Supreme Court.

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As many Texas landowners are aware, oil and gas pipelines are being constructed at an almost frantic pace these days. The first time a landowner is aware that they may be asked to sign a pipeline easement is a call from a land man or right-of-way agent requesting permission to conduct a survey on their property.

Many landowners simply give verbal permission or sign the one paragraph form offered to them by the land man or agent. That can be a mistake. If you’re interested in protecting your property, you should consider using an appropriate survey permit to govern the pipeline company’s surveying activities on your property. That is even more true for geophysical or seismic permits.

A pipeline permit should address at least the following issues:

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How the Texas courts construe and interpret unambiguous deeds follows a specific set of rules. In construing an unambiguous deed, the court’s main focus is to ascertain the parties’ true intent regarding the conveyance of real property by the deed. The court reviews the entirety of the deed, which is sometimes referred to as analyzing “the four corners” of the deed, meaning that the court will look to what is written in the deed, and not to outside sources. There are well established rules concerning the interpretation and construction of a real property deed.edge-1563789

For an unambiguous deed, the court will determine the grantor’s intent from the specific language that is used in the deed, and will not make presumptions that are not overtly made clear by the language of the deed. When there is even the slightest doubt about the intent of the grantor, the terms of a deed are often construed in favor of the grantee. This is consistent with Texas contract law, which strongly favors the presumption that contracts, such as deeds, say exactly what they mean.

Does A Grantor’s Failure to Designate Capacity Fatally Flaw A Conveyance?

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As production in Texas’ Permian Basin increases, so does the industry’s need for pipelines to transport production to treatment facilities and markets. Kinder Morgan, EagleClaw Midstream Ventures and Apache Corporation recently announced they have signed a letter of intent to build yet another oil and gas pipeline, to be called the Permian Highway Pipeline Project (PHP Project). The 42 inch pipeline will be designed to carry about 2 billion cubic feet per day and will be about 430 miles long, from Waha hub in Pecos County, Texas to several liquid natural gas facilities on the Texas Gulf coast. (Waha is a West Texas trading hub and pricing point). It appears from news releases that much of the pipeline capacity will be used to transport production by the three partners, but they are apparently also considering adding enough capacity to transport production from other companies.

ExxonMobil and Plains All American Pipeline have also announced that they have signed a letter of intent to build a common carrier pipeline from Wink and Midland, Texas to Webster, Baytown and Beaumont, Texas.

If you get a call from a landman representing a pipeline company, do yourself and your property a favor: do not try to negotiate a pipeline easement without the assistance of an attorney experienced in this area. The truth is that you don’t know what you don’t know, and in all probability you will have to live with your mistakes for many decades.

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In the recent case of Tarr v. Timberwood Park Owners Association Inc. the Texas Supreme Court considered whether a deed restriction that limited use of homes “solely for residential purposes” prevented a homeowner from using his home for short-term rentals. Based on the language of the restrictive covenant, the Court decided that renting the home — even for short time periods — was not a “business purpose.” The rentals were considered to be a “residential purpose” and so the homeowner did not violate the deed restriction. In addition, the Court refused to conflate two restrictions into a ban on use of the home for multi-family units and also held that when a restrictive covenant unambiguously fails to address some particular property use — such as use for short-term rental — Texas courts must not to read such covenants into the deeds.

Facts of Case

 Tarr involved a homeowner’s use of his home for short-term rentals in San Antonio’s Timberwood Park subdivision. Two years after Mr. Tarr bought his home, his employer transferred him to Houston. Thereafter, he began advertising the home for rent on websites such as Vacation Rentals by Owner. Tarr also formed a limited-liability company to manage the rental of the home. Between June and October of 2014, Tarr entered into 31 short-term rental agreements, ranging from one to seven days each. He rented his home to various-sized rental parties up to 10 people. For example, nearly one quarter of the rentals were to two adults accompanied by as many as six children.

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The Houston Court of Appeals in Bauder v. Alegria  issued a decision that a text message can be used to establish the last known address of a borrower for the purposes of delivering a foreclosure notice when it is unclear if the address on the deed of trust is the borrower’s last known address.

In the Bauder case, a woman named Sara Alegria purchased a home at 1825 Neuman Street in La Marque, Texas in 2010 from Gerald Bauder. When Alegria signed a promissory note and the deed of trust, she indicated that her mailing address was 704 Roosevelt Street in La Marque. Over time as Alegria made payments to Bauder, sometimes she delivered her mortgage payments to Bauder, other times Bauder’s son (who was authorized to act for Bauder) would come to the property on Neuman Street to pick up the payments, and sometimes Bauder’s son would pick up the payments from the Roosevelt Street address.

In 2013, the loan was in default due to nonpayment of taxes and failure to maintain insurance, and a notice to cure was sent to the Roosevelt address. The notice indicated that a failure to cure would result in an acceleration of the payments due on the promissory note.

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