USA – TEXAS Law and Practice Contributed by: Taylor Cooksey, David Brooks, Serena Kramer and Philip Kinkaid, Cokinos | Young
• Easements are exclusive or non-exclusive rights to use or access someone else’s property for specific purposes, such as utilities, access or drainage. Easements are typically established through ease - ment agreements, but in some circumstances they may arise by operation of law. • Licences are similar to easements and grant permission to use another person’s property for a specific purpose, but often on a revocable or short- term basis. They are considered contractual rather than property interests. Minerals, Water and Similar Rights • Mineral rights pertain to the ownership of oil, gas or other minerals beneath the surface of the property. In Texas, such rights typically involve oil and gas. • Geothermal energy resources rights relate to steam, heat and other underground products of geothermal processes. • Pore space rights: Texas law is currently unclear as to whether underground spaces, such as pores within rocks (which may be used for carbon sequestration), are owned by the surface (fee) owner or by the mineral estate owner. • Water rights: Texas law recognises ownership rights in two types of water resources. (a) Groundwater – ie, water underneath a tract of land. The landowner may extract such ground - water, subject to possible local regulation. (b) Surface water – ie, water in rivers, streams, lakes and other surface bodies, which is owned by the state. Permits to use such water are granted to private parties, with priority based on the age of the permits (subject to rights of adjacent landowners to use surface water for domestic and livestock purposes). • Air rights allow the owner to use the space above the property, often for construction or airspace leasing. Concurrent Estates Ownership is shared by two or more individuals, including: • a Tenancy in Common where each owner holds an undivided interest in the property, which can be passed to heirs; and
• a Joint Tenancy with Right of Survivorship where owners have equal shares – upon the death of one owner, the surviving owners automatically acquire the deceased’s interest. 2.2 Laws Applicable to Transfer of Title The transfer of real estate title is governed primarily by the Texas Property Code and other state law. 2.3 Effecting Lawful and Proper Transfer of Title Deeds and Other Transfers of Real Property Transfers of most types of real property, including fee estates, are effected through the execution and delivery of a deed. When this occurs, the person to whom the property is transferred acquires ownership from the seller but has no protection against most third-party claims unless the transfer is recorded (as described below). Real property is not registered in Texas. Instead, trans - fers of real property are recorded in the county’s offi - cial public records, maintained by the County Clerk. Such recordation puts third parties on “constructive notice” of the document and its contents. To be recorded in the public records, the document must be executed and acknowledged before a notary public or otherwise proved according to law. Texas authorises the remote notarisation and elec - tronic recording of documents. Recent anti-fraud legislation requires photo identifica - tion for in-person property document filings, and pro - vides property owners with certain protections against fraudulent filings. Title Warranties in Deeds The deed will typically include one of the following types of title warranty. • A general warranty of title is the strongest type of title warranty, and protects the buyer against title defects regardless of who created them. General warranties are standard in sales of residential real estate.
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