An Introduction - buckleyturner.com · -Written Agreement - can be a deed with recitation, BUT must be executed by BOTH spouses. However, “the recitation in a deed not signed by

NEW MEXICOAn Introduction

“All calculations based on our experiences elsewhere fail in New Mexico.”- Former Gov. Lew Wallace

What We’ll Cover

-Pre-History: Native Americans: Pueblos, Utes, etc.

-Conquest Period: Spain, Mexico and Mexican-American War

-Pre-Statehood: Treaty of Guadalupe Hidalgo, Organic Act, Private Land Claim Acts, Ferguson Act, Enabling Act,

-Statehood: Oil, Gas and Mineral Estate, the Oil and Gas Lease, Community Property, Descent/Distribution

Buckley & Turner, PLLCwww.buckleyturner.com

What We Won’t

-Indian Lands

-Bureau of Indian Affairs

-San Juan Basin

-Bureau of Land Management

-State Land Office


What is the Official New Mexico State Nickname?

Historical Taos Pueblo

Quanah Parker - Comanche

Manuelito - Navajo

Francisco Velasquez de Coronado

Juan de Onate


Gen. Stephen Watts Kearney

Early History and Pre-Statehood


Pre-History

Ancestors of the Pueblos inhabited New Mexico as early as 10,000 BCE (four-corners)

Cliff Dwellings

Taos Pueblo inhabited as early as 1,000 CE.

Dispersal South circa 1,500 CE

Chaco National Park


Chaco National Park


Pre-History

NW New Mexico : Navajos and Utes

SW New Mexico: Apaches and Comanches


Navajo/Ute

Apache

Comanche


Manuelito - Navajo


Colonization

First Contact 1540 - Francisco Velasquez de Coronado (7 cities of gold)

Official Colonization begins 1598 - Juan de Onate

Institution of civil law



Manuelito - Navajo


Juan de Onate


Spanish Civil Law

-Based on custom and legislation (codal).

-Private Property system

-Ganancial System of Community Property

-Ejidos - Community land grants. Not alienable.

-Private land grants - Given to elevate status of Conquistadors and encourage further settlement. Alienable.


Spanish Civil Law(2)

-Pueblo Land Grants

- Legal Protections: buffer zones between Europeans and Pueblos, limitation on alienation of Pueblo lands, etc.

-Special Relationship - Spanish civil law is predecessor to USA’s special relationship with Native Americans, including: sovereignty, Federal-to-Tribe relationship, and Trust Responsibility of US Government to Native American Tribes.


Mexico (1821-1846)

-Mexican Independence

Continued Spanish Civil Law traditions

-Very tumultuous period

-Often unknown who had authority to grant lands

-Mexican American War -


Aftermath of Mexican-American War

-Treaty of Guadalupe Hidalgo - Ends war in 1848; Includes guarantees United States will protect the property rights of former Mexican citizens (Kearney Code 1848 - early 1850’s - included similar property protections)

-Act of 1854 - Land claims adjudicated by Surveyor General. (SF Land Ring).

-Court of Private Land Claims 1891- In response to suspected fraud and corruption, new process developed with stricter oversight and ability to appeal to Supreme Court

-Conflict between Civil Law customs and Common Law statutory requirements

-



Map of New Mexico Land Grants approved pre-Statehood

Ferguson Act/Enabling Act Buckley & Turner, PLLCwww.buckleyturner.com

Ferguson Act 1898 - Transferred Sections 16 and 36 in each Township and Range to State of New Mexico for benefit of public schools, institutions, etc.

Enabling Act of 1910 - Transferred Sections 2 and 32 in each Township and Range to State of New Mexico for public benefit

Lieu Lands / Potash

Admission to Union in 1912

All land titles emanate from the USA, the State or from Previously approved Spanish or Mexican land grants

What is the Official New Mexico State Aircraft?



Manuelito - Navajo


Juan de Onate


Gen. Stephen Watts Kearney

Fee Lands, Mineral Estate and the Oil and Gas Lease


Mineral Estate Buckley & Turner, PLLCwww.buckleyturner.com

Martin Yates, Jr.


Flynn-Welch-Yates No. 3

First Commercial Producer

Artesia Field, NM


All land titles emanate from the USA, the State or from Previously approved Spanish or Mexican land grants.

Federal Patents convey all oil, gas, and other minerals, unless the Patent includes a reservation.


Ownership in Place Theory - identical to Texas; Severance by grant or reservation creates separate estate. Results in application of all real property concepts: statute of frauds, implied easement of necessity (subject to NM SOPA), and civil actions: adverse possession, partition, quiet title, etc.; Taxation by the State;

NMSA 1978, §37-1-22 - Title in fee simple by adverse possession; action after ten years barred; definition; payment of tax;

NMSA 1978, §37-1-28 - Real estate; limitation on actions for defects of title; Suit barred after fifteen years in certain circumstances (generally authorization issues - Trustee, guardian, corporate officer, etc)


Mineral has five component parts - BRRED - Bonus, Rent, Royalty, Executive right, and right to Explore and Develop. Can be stripped of any one of its five parts (NEMI, NPRI, etc.); are devisable and heritable, and subject to laws of community property.


Oil and Gas Lease -

Habendum (granting) clause - fee simple determinable - three years, and for so long as production in paying quantities.

Entire mineral estate conveyed to lessee, including implied easement of necessity; lessor retains royalty interest and possibility of reverter only.

Terminates automatically if no PPQ unless - Savings clauses invoked: delay rentals, continuous operations, shut-in gas royalties, etc.

NMSA 1978, 70-1-3, et seq: Release required ($100 penalty plus atty’s fees)


Implied easement of necessity - use so much of the surface as is reasonably necessary to develop mineral estate; subject to:

Surface Owner’s Protection Act (SOPA) - NMSA 1978, §70-12-1

Guarantees certain rights to surface fee owners AND surface tenants whose leasehold improvements could be damaged by oil and gas operations.

1. 5 day notice prior to surface activities: staking, surveying, etc.2. 30 day notice prior to drilling3. Provides treble damages if clear and convincing evidence demonstrates

operator willfully entered premises without giving required notice.


Commencement of Operations - permissive standard

Enduro Operating, LLC v. Echo Prod., Inc., 2018 WL 897360 (NM S. Ct.)

Proof of commencement = commit resources (on or off site) that demonstrate good-faith intent to diligently carry on drilling activities until completion.

-Drilling, permitting, not required

-On-site: digging pits, levelling well location, etc.

Off-site: drilling contract


Royalty Payments - Oil and Gas Proceeds Payments Act

1. Payments made no later than six (6) months after the first day of the month following the date of first sale

2. Afterwards, not later than forty-five (45) days after the end of the calendar month within which payment is received by the payor for production.

3. Interest available for unpaid or suspended royalties

First Baptist Church of Roswell v. Yates Petroleum Corp., 345 P.3d 310 (NM 2015); Despite language contained in a division order to the contrary, a Lessor CANNOT contract away her right to receive interest payments on unpaid royalties as a matter of public policy,


Pooling - Communitization - Unitization -

Pooling: combination of two or more oil and gas leases covering fee lands into spacing or production units.

Communitization: is the term used for pooling fee, state, and/or federal leases into spacing or production units. State has its own form.

Unitization: combination of an entire field or pool to be operated as a single entity. (Maximize efficiency, prevent waste, protects correlative rights). Original unitization scheme was patterned after similar water irrigation systems in the parched American west.


Compulsory (forced) Pooling - NMSA 1978, 70-2-17(c); NMAC 19.15.13.8;

-After notice and a hearing at the NM OCD or NM OCC, unleased mineral owner receives 1/8 RI and 7/8 WI, proportionately reduced.

-Provides for 200% risk charge for non-participating leasehold co-tenants.

-Production proceeds and operating costs are allocated on a surface acreage basis

-NPRI/NEMI/ORI owners must ratify pooled units; can be forced pooled.


NM gauges a Lessee’s conduct by the reasonably prudent operator standard and recognizes several implied lease covenants:

- develop, prevent drainage, market production, etc.

-implied covenants are superseded by express provisions of the lease, and can only be invoked in the absence of express terms


Interpretation of Instruments: Contextual Approach

-Generally interprets OGML against Lessee

-Rejected “four corners” approach

-Even if instrument is unambiguous, NM courts can look to circumstancial evidence to deduce intent of the parties.

-question of ambiguity is a matter of law to be decided by the trial court.

-applies to land descriptions: use of extrensic evidence

Mineral Estate - Regulation Buckley & Turner, PLLCwww.buckleyturner.com

New Mexico Oil Conservation Division (NMOCD) of the Energy, Minerals, and Natural Resources Department (EMNRD)

-NMOCD - enforces the New Mexico Oil and Gas Act, enacted in 1935, and expanded in NMAC 19.15 et seq.

NMOCD and New Mexico Oil Conservation Commission empowerd with concurrent jurisdiction and have BROAD authority to protect correlative rights, and prevent waste (= production of oil in excess of demand as well as operations that reduce recoverable potash deposits)

Mineral Estate - Regulation Buckley & Turner, PLLCwww.buckleyturner.com

NMOCD -

Spacing, special pool rules, proration and allowables, drilling permits, pooling, forced pooling, etc.

Where is the Chile capital of the world?

Historical Taos PuebloBuckley & Turner, PLLCwww.buckleyturner.com

Community Property Buckley & Turner, PLLCwww.buckleyturner.com

NM = Community Property State (AZ, CA, ID, LA, NV, TX, WA, NM);All property acquired by husband or wife during marriage is presumed to be community property. May be rebutted by preponderance of the evidence

Separate Property: property acquired before marriage, after divorce, gift, bequest, devise, or descent during marriage, and property designated as separate property by a written agreement between the spouses.

Community Property is all property that is not Separate Property

Inception of title/relation back doctrine- character of property determined at acquisition.


Quasi-Community Property

Real and personal property acquired by purchase or exchange by either spouse while domiciled OUTSIDE of New Mexico which would have been community property if the spouse who acquired the property had been domiciled in NM at the time of acquisition.

-Written Agreement - can be a deed with recitation, BUT must be executed by BOTH spouses. However, “the recitation in a deed not signed by both spouses that the property is the sole and separate property of a married man does not affect the presumption that the property is community.”


Caveats to CP rules:

-Deed to married woman alone? - PRIOR to 1973, property acquired by a married woman in her name alone is PRESUMED to be her Separate Property.

-Equal Rights Amendment to NM Constitution - eradicated presumption prospectively beginning 7/1/1973 to present.


Results of CP Rules:

JOINDER - BOTH spouses required to join in a conveyance, mortgage, lease over five years, or contract to transfer ANY interest in community REAL property AND Separate REAL property owned as co-tenants in joint tenancy or tenancy in common.

Pre June 18, 1993 - non-joinder by spouse = VOID Conveyance. NM Courts generally refuse to allow subsequent ratifications to “breathe life into a dead instrument…”

Post June 18, 1993 - Legislature amends statute to allow for ratification by non-signing spouse.

Remedy: Pre-1993 - Ratification with present words of grant and conveyance executed by BOTH Spouses. Post-1993 - Ratification with present words of grant and conveyance by non-signing spouse.

What is the official state bird of New Mexico?

Historical Taos PuebloBuckley & Turner, PLLCwww.buckleyturner.com

CHAPARRAL BIRD

EL CORRECAMINOS

EL PAISANO

Descent & Distribution Buckley & Turner, PLLCwww.buckleyturner.com

Uniform Probate Code governs descent and distribution of a New Mexico resident’s estate as well as real property owned by a non-resident (Rule of Situs)

Intestacy: July 1, 1973 to present

Married, no children: 100% separate and community property to spouse.

Married, with children: 100% deceased spouse’s CP to surviving spouse; 3/4 deceased spouse’s SP to children BY REPRESENTATION, 1/4 SP to surviving spouse.

Descent & Distribution - (Intestacy) Buckley & Turner, PLLCwww.buckleyturner.com

Married, no children

100% SurvivingSpouse

Married, w/ children


3/4 Descendants

1/4 Surviving Spouse

Community Property Separate Property

July 1, 1973 to present


Statehood to presentSingle, No Descendants

Parent(s) Survive

100% Surviving Parent(s)

Sibling(s) Survive

100% Surviving Grandparent(s)

Grandparent(s) Survive

100% Surviving Sibling(s)

Grandparent(s) Do Not Survive

100% Surviving Kin of

Grandparent(s)

1/2 to each, or all to sole survivor

By Representation: 6/18/1993 to presentPer Stirpes: Statehood to 6/18/1993

1/2 to paternal and 1/2 to maternal side, or all to sole surviving side


Present ----------July 1, 1973------- July 12, 1959 -----------------------Statehood

Husband’s CP share automatically

passes to wife

7/1/73 - Power of Testamentary Disposition

Granted to Wives

Husband’s 1/2 CP shareWife receives 5/8 of Community Estate: Her 1/2 plus 1/4 of Husband’s 1/2 InterestChildren receive remaining 3/8 of Community Estate, being 3/4 of Husband’s 1/2 community interest, PER STIRPES

Present Statutory Scheme

Present Statutory Scheme

By Representation Per Stirpes6/18/1993

Wife lacks power of testamentary dispositionHer 1/2 of Community Estate automatically vests in husband




July 12, 1959 to July 1, 1973


Husband or Wife diesMarried, w/ childrenMarried, no children

3/4 Descendants





Statehood to July 12, 1959

100% To

Husband

Wife dies

Married, no children

3/4 Descendants



Husband dies


100% To

Husband

Statehood to July 12, 1959


Married, no children Wife dies

Married, w/ childrenHusband dies

Community

Separate

3/4 Descendants

1/4 Surviving

Spouse Husband or wife dies

-By Representation: 6/18/1993 to present

-Per Stirpes: Statehood to 6/18/1993

-Wife lacks testamentary power over her 1/2 interest in community estate from Statehood to 7/1/1973. Automatically vests in husband at her death.


3/4 Descendants

1/4 Surviving

Spouse

July 12, 1959 to presentMarried, no children


Community Separate



By Representation: Estate is divided into as many shares as there are (1) heirs in the nearest degree of kinship AND (2) deceased persons in the same degree who left issue who survive the decedent. Each generation is treated “per capita: by the head”. As a result, Fawn’s 1/4 interest and Cal’s 1/4 interest are combined, then shared equally amongst the surviving grandchildren.

Momma

Albert Damien

ThumperBambiMore KidsKids

Bobby FawnCal

Predeceased, no kids

Even more kids

1/4 1/4

1/4 1/4

Sam

1 2 3

Albert = 1/4 Bobby = 1/4

Sam = 1/3 x 1/2, 1/6Bambi = 1/3 x 1/2, 1/6 Thumper = 1/3 x 1/2, 1/6


Per Stirpes: Estate is divided into as many shares as there are (1) heirs in the nearest degree of kinship AND (2) deceased persons in the same degree who left issue who survive the decedent. Each generation is treated “by the root” or branch, thus no combination of second degree of kin.

Momma

Albert Damien

ThumperBambiMore KidsKids

Bobby FawnCal

Predeceased, no kids

Even more kids

1/4 1/4

1/4 1/4

Sam

Albert = 1/4 Bobby = 1/4

Sam = 1/4Bambi = 1/2 x 1/4, or 1/8 Thumper = 1/2 x 1/4, or 1/8


Partial Revocation of Wills

Pretermitted heirs - child born or adopted AFTER execution of will receives intestate share of decedent’s estate unless the will is clear about the testator’s intent to omit the child.

Omitted Spouses - Omitted spouse who marries testator after execution of a will is entitled to receive an intestate share of the decedent’s estate unless such share is devised to a child of the testator born prior to the most recent marriage.

Divorce = Death! - Divorced spouse is treated as predeceasing for testacy purposes. Divorce also automatically transforms a joint tenancy with the right of survivorship between former spouses into an equal tenancy in common.

Descent & Distribution - (Testacy) Buckley & Turner, PLLCwww.buckleyturner.com

Foreign Estates & Foreign Wills

Marketable Title - “...a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonably prudent and intelligent person; one that a person of reasonable prudence and intelligence, guided by competent legal advice, would be willing to take and pay for at its fair value.” Simpson v. Stallings, 225 P.2d 139 (N. M. 1950)

Title to New Mexico Real Property is NOT MARKETABLE until probate proceedings have been conducted.


Intestacy

Upon application, a New Mexico court will appoint a personal representative to oversee an intestate or testate estate.

-Personal Representative required to execute a distribution deed, which is conclusive evidence that the heir has succeeded to the interest of the estate. -HOWEVER, Personal Rep. is not required to conduct heirship proceedings in the case of intestate death.


Testacy Original or Concurrent Probate Proceedings: Full proceedings in either New Mexico County only, or NM County AND Foreign Jurisdiction simultaneously.

Ancillary Probate Proceedings:File authenticated copy of Will and authenticated copy of domiciliary letters with a NM Court IN ANY COUNTY where decedent owned real property. Court grants Foreign Personal Representative Ancillary Letters of Administration, which confers authority to convey New Mexico Real Property in ANY COUNTY.

Proof of AuthorityFile authenticated copies of (1) Foreign Personal Representative’s appointment, (2) the will and (3) order admitting will, with probate court IN EACH COUNTY where decedent owned real property. The Court assigns a case number, but no final order is signed. Each Proof of Authority confers authority to convey NM Real Property in the County in which it is granted.

What is Billy the Kid’s real name?

Buckley & Turner, PLLCwww.buckleyturner.com WILLIAM H. BONNEY

WWW.BUCKLEYTURNER.COM



NEW MEXICOAn Introduction

“All calculations based on our experiences elsewhere fail in New Mexico.”- Former Gov. Lew Wallace

Documents

An Introduction - buckleyturner.com · -Written Agreement - can be a deed with recitation, BUT must be executed by BOTH spouses. However, “the recitation in a deed not signed by