Deep Dives: Making Texas Real Estate Law Understandable

Trey Wilson, San Antonio Real Estate Lawyer and Texas Water Rights Attorney

This podcast created Created by Texas Real Estate Attorney and Water Lawyer Trey Wilson. The hosts explore Texas court decisions involving Real Estate Law and water rights through casual conversation designed to be understood by the average listener. Legal concepts addressed by Texas Courts are discussed in a fun and conversational tone. This podcast is not intended to offer legal advice, but rather, to entertain while educating the listener Contact Trey Wilson San Antonio Real Estate Lawyer Texas Water Rights Attorney ⁠www.SanAntonioRealEstateLawyer.com⁠ 210-354-7600

  1. 07/04/2025

    Produced Water - Land or Mineral Estate?

    This episode explores a brand new Texas Supreme Court decision in Cactus Water Services, LLC v. COG Operating, LLC (No. 23-0676 (June 27, 2025)) that definitively resolves the characterization of produced water ownership. Summary by Trey Wilson, Texas Real Estate and Water Law Attorney in San Antonio The Court affirmed that produced water is an inherent and inescapable byproduct of oil and gas production, and its ownership, possession, custody, control, and disposition are implicitly conveyed to the mineral-estate lessee (the oil and gas operator) as part of the hydrocarbon rights. For a surface owner to retain ownership of produced water, an express reservation in the mineral conveyance is required. 1. Produced Water is Classified as "Oil-and-Gas Waste," Not Surface Water. The central dispute hinged on whether produced water is legally "water" (part of the surface estate) or "waste" (an incidental byproduct of mineral production).The Court unequivocally classified produced water as "oil-and-gas waste," stating, "We think it beyond cavil, and not in genuine dispute, that produced water is, and was at the time of the conveyance, oil-and-gas waste."Despite containing water molecules, produced water is characterized as a "hazardous, even toxic, mixture produced with hydrocarbons and separated from them after extraction at the wellbore."Statutory and regulatory frameworks treat "water" and "produced water" differently. Produced water is subject to specialized regulations governing its disposal, treatment, and reuse due to its contaminants. The Court emphasized: "Water is something that must be protected from oil-and-gas waste; the two are not interchangeable." 2. Ownership of Produced Water is Implicitly Conveyed to the Mineral Lessee. The Court held that "a deed or lease using typical language to convey oil-and-gas rights, though not expressly addressing produced water, includes that substance as part of the conveyance whether the parties knew of its prospective value or not."This conclusion is rooted in the "necessarily incidental" doctrine: hydrocarbon production "necessarily contemplates and encompasses the right to produce and manage the resulting waste."Historically, the "right to consume the value of property is generally a right of ownership, not use."Therefore, the hydrocarbon producer's "possession and control over the disposition of liquid-waste byproduct is necessarily incidental to, and therefore encompassed in, a conveyance of oil-and-gas rights." 3. Subsequent Innovations and Beneficial Uses Do Not Alter Original Conveyances. A key aspect of the ruling is that emerging technologies for the beneficial reuse and recycling of produced water do not retrospectively change the scope or intent of past conveyances.The Court explicitly states, "subsequent innovations do not change the parties’ expectations or the deal that was struck."Interpretation of the conveyance must be "as of the transfer of rights, not through a modern lens." 4. Express Reservation is Required for Surface Owners to Retain Ownership. The Court clarified that if surface owners wish to retain ownership of produced water, "the reservation or exception from the mineral conveyance must be express and cannot be implied."Texas law presumes "an intent to sever the mineral and surface estates, convey all valuable substances to the mineral owner... and to preserve the uses incident to each estate." Any reservation "must be by clear language." 5. Produced Water is Distinct from Groundwater; Mineral Lessee's Rights are Ownership, Not Usufructuary. The Court rejected Cactus's argument that produced water is simply "water" belonging to the surface estate, distinguishing it from cases concerning groundwater ownership (e.g., Edwards Aquifer Authority v. Day and Sun Oil Co. v. Whitaker). These prior cases pertain to "ownership of groundwater in situ or extracted through water wells for use as water," not "waste byproducts of oil-and-gas production."

  2. 01/08/2025

    Are Wind Farms a Legal Nuisance?

    Case: Green v. Century Oak Wind Project, LLC Court: Court of Appeals of Texas, Eleventh District, Eastland Date: December 12, 2024 Case Number: No. 11-23-00125-CV Overview This case involves an appeal by landowners challenging the trial court's dismissal of their nuisance lawsuit against the developers of a wind turbine project on a neighboring property. The trial court dismissed the case based on Rule 91a of the Texas Rules of Civil Procedure, which allows for dismissal of cases with no basis in law or fact. The Appellants claimed the wind farm constituted private and public nuisances. The appellate court partially reversed and remanded the case. Holding: The Court of Appeals affirmed the dismissal of the aesthetic-based nuisance claims (daytime and nighttime visual), and the common nuisance claim. However, it reversed the dismissal of the claims based on auditory, tactile and wildlife impacts, finding the Appellants' pleadings met the minimal requirements of a cause of action. These claims were remanded back to the trial court to be tried. Significance: This case underscores strict limitations on nuisance claims, particularly aesthetic complaints, and the need for specific factual allegations to establish culpable conduct on the part of a defendant. The court noted that III. Factual Background /Procedural History Appellants filed a lawsuit seeking an injunction and damages alleging the wind turbine project would create several nuisances, including visual nuisances (day and night), audible nuisances, tactile/vibrating nuisances and harm to wildlife. The wind turbines were to be located very close to the Appellants’ property, some as close as a "few hundred yards", with the project stretching “for miles.” Neither Plaintiffresided on the property in question, rather the properties were used for hunting, livestock, and farming. Appellees moved to dismiss under Rule 91a, arguing the claims lacked legal basis, primarily because they were aesthetic-based complaints or did not plead sufficient facts to prove culpability. The trial court granted the motion, dismissing the case entirely with prejudice. Key Legal Principles Private Nuisance Law in Texas: The court reaffirmed that "nuisance" itself is not a separate cause of action, but rather a type of legal injury. Liability for a nuisance requires proving both the injury (substantial and unreasonable interference with the use and enjoyment of land) and the culpability of the defendant's conduct (intentional or negligent). Interference must be more than a "trifle" or "petty annoyance". "Whether an interference is substantial or the effect is unreasonable requires a balancing of nonexclusive factors" including the location of the land, the neighborhood, the social utility of the property’s usage, etc. Aesthetic Nuisances: Texas law does not permit nuisance claims based solely on aesthetic concerns. Intentional Nuisance: A defendant intentionally causes a nuisance if the defendant "acts for the purpose of causing the interference or knows that [the interference] is resulting or is substantially certain to result from the defendant's conduct." Negligent Nuisance: Requires proof of “the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” The “unique element” of this claim is “that the defendant’s negligent conduct caused a nuisance, which in turn resulted in the plaintiff’s damages.” Prospective Damages: Monetary damages cannot be sought for a prospective nuisance, though equitable relief may be available. Contact: Trey Wilson San Antonio Real Estate Lawyer 210-223-4100

  3. 12/16/2024

    Easement Uses Not Set in Stone - Tech Changes Affect Scope

    Case: Pedernales Electric Cooperative, Inc. (PEC) v. Samuel S. White, Janette Barlow, Gregory Colon and Stephanie Colon (Landowners) Significance: This case establishes a precedent for broadly interpreting easement language in favor of grantees, especially in the context of public utilities. It reinforces the right of easement holders to adapt their use to technological advancements and meet evolving public needs, as long as such actions align with the overarching purpose of the easement. Court: Texas Court of Appeals, Third District Austin Date Decided: December 11, 2024 Subject: Interpretation of an easement for an electric transmission line; Permissibility of voltage upgrades and associated construction within easement boundaries. Summary: This case examines whether PEC's upgrade of an existing electric transmission line involving increased voltage, taller steel poles and larger conductors, fell within the scope of a decades-old easement agreement. The trial court favored the Landowners, issuing a permanent injunction against the higher voltage and awarding damages. The 3rd Court of Appeals reversed, ruling that the upgrade was permissible under the broad language of the easement. Important Ideas: The court emphasizes interpreting easement terms according to their plain, ordinary meaning and resolving ambiguity in favor of the grantee . The court acknowledges the evolving nature of technology and demand, stating that "the manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development." This principle is central to justifying PEC's voltage upgrade. The court acknowledges the necessity of the upgrade to meet the growing energy demands and improve grid reliability. This public interest factor plays a role in supporting PEC's actions. The court finds the absence of specific restrictions regarding voltage in the easement agreement to be significant. It highlights that parties are capable of inserting limitations and their omission implies a broader scope for the grantee. Outcome: The Court of Appeals reversed the trial court's judgment, dissolved the permanent injunction against PEC, and rendered judgment in favor of PEC. The Landowners were denied any damages or attorney's fees. Contact: Trey Wilson Real Estate Lawyer in San Antonio

  4. 11/19/2024

    Deed Restrictions and Short Term Rentals - Texas Supreme Court Strikes Again

    Case: JBrice Holdings, L.L.C. v. Wilcrest Walk Townhomes Ass'n Court: Supreme Court of Texas Date: April 22, 2022 Summary: This case concerns the legality of a homeowner's association (HOA) prohibiting short-term rentals within a townhome community. The Supreme Court of Texas ultimately ruled in favor of the homeowner, JBrice Holdings, finding that neither the community's deed restrictions nor the Texas Property Code authorized the HOA to impose such a ban. Outcome: The Supreme Court of Texas reversed the lower court's decision, vacated the injunction against short-term rentals, and remanded the case for consideration of attorney's fees. Implications: This case provides important guidance for Texas HOAs and property owners regarding short-term rentals. HOAs seeking to regulate or prohibit such rentals must ensure their deed restrictions explicitly address the issue. Additionally, the case highlights the importance of carefully drafting deed restrictions and the potential consequences of broad language that may unintentionally limit an HOA's authority. Main Themes: Interpretation of restrictive covenants: The court emphasized the importance of strictly construing deed restrictions according to their plain language. Restrictions on property use must be explicitly stated, and courts will not expand their scope through interpretation. Property owners' rights: The court reaffirmed the strong legal preference for protecting property owners' rights to use and enjoy their property. Restrictive covenants are only enforceable if they clearly limit those rights and were agreed to by the owner. Limits on HOA authority: While HOAs have authority to govern communities, their power is derived from and limited by the deed restrictions and applicable statutes. They cannot unilaterally impose restrictions that conflict with these governing documents. Key Facts and Findings: JBrice Holdings, L.L.C. purchased two townhomes in the Wilcrest Walk subdivision and began offering them as short-term rentals. The Wilcrest Walk HOA objected to the short-term rentals and adopted rules prohibiting them, arguing they violated the community's residential-use restriction and constituted a nuisance. The court found that the residential-use restriction, while prohibiting commercial use, did not specify a minimum lease duration. Crucially, the deed restrictions included a provision stating that, apart from specific limitations within the governing documents, "there shall be no restriction on the right of any townhouse owner to lease his unit." The court held that short-term rentals constitute valid leases and did not violate the residential-use covenant. The court also rejected the HOA's argument that it had authority to ban short-term rentals under Section 204.010(a)(6) of the Property Code. This section permits HOA regulation of property use but explicitly states that such regulation cannot conflict with existing deed restrictions. The court found the HOA's rules directly conflicted with the "no restriction" provision regarding leasing. Important Quotes: Regarding restrictive covenants: "A covenant under review 'may not be enlarged, extended, stretched or changed by construction.'" Regarding property owner rights: "The law favors owners' rights to use and enjoy their property." Regarding limitations on HOA authority: "Because a property owner's consent to a restriction is the foundation for its legitimacy, courts will enforce it only if the deed incorporates the restriction or authorizes its adoption at the time of purchase, or when governing law otherwise permits the restriction." Regarding the "no restriction" clause: "'No restriction' means no restriction."

  5. 11/11/2024

    Pre-Purchase Inspection and Non-Disclosure Claims

    Case: George Lesieur v. Timothy & Sandra Fryar, Cynthia Morales d/b/a Morales Realty, and Cynthia Gonzalez Court: Texas Court of Appeals, Fourth Court of Appeals, San Antonio Date: March 10, 2010 Significance: This case highlights the critical role of pre-purchase inspections in real estate transactions. The court's ruling suggests that buyers who conduct thorough inspections, even if those inspections identify potential issues, may have a limited ability to claim reliance and causation against sellers for undisclosed defects. The dissent, however, raises important questions about the degree of similarity required between inspection reports to negate a buyer's claims, emphasizing that seemingly minor wording differences can convey significantly different levels of concern about a potential defect. Main Issue: Did the buyer's pre-purchase inspection negate the elements of causation and reliance in his claims of fraud and misrepresentation against the sellers and their real estate agents regarding undisclosed foundation issues? Themes: Buyer's Duty to Investigate: The court emphasizes the importance of a buyer's pre-purchase inspection and its impact on claims of reliance and causation. A thorough inspection can limit a seller's liability for undisclosed defects. "As Is" Clauses: The court touches upon the potential impact of "as is" clauses on a buyer's ability to recover for undisclosed defects, but does not make a definitive ruling in this case. Third-Party Beneficiary Status: The court analyzes whether a real estate agent can be considered a third-party beneficiary of a sales contract to claim attorney fees. Key Facts: The sellers (Fryars) had a 2002 inspection report (Adams Report) that noted "signs of structural movement" in the foundation but did not advise the foundation was "Not Functioning or In Need of Repair." The sellers did not disclose the Adams Report to the buyer (Lesieur) and denied having any inspection reports. The buyer conducted his own pre-purchase inspection in 2005 (NPI Report), which noted "stress/settlement cracks" but similarly did not advise the foundation was "Not Functioning or In Need of Repair." The buyer later discovered foundation problems and sued the sellers and their agents for fraud, DTPA violations, and other claims. Court's Holding: The court held that the buyer's pre-purchase inspection negated causation and reliance as a matter of law. The court reasoned that both inspection reports provided the buyer with essentially the same information regarding the foundation, even though the wording differed slightly. The court cited its prior decision in Lim v. Lomeli, stating that a buyer cannot claim reliance if the information about a defect was "equally available" to them. Dissent: The dissenting judge argued that the differences in wording between the two inspection reports were substantive and conveyed different levels of warning. The dissent emphasized that the Adams Report noted "structural movement" while the NPI Report did not. The dissent also pointed to the buyer's affidavit stating he would not have purchased the property had he known about the Adams Report. Contact: Trey Wilson, Real Estate Lawyer in San Antonio www.SanAntonioRealEstateLawyer.com 210-354-7600

  6. 11/10/2024

    Land Must Be Sufficiently Described in Real Estate Contract

    Case: Dayston, LLC (Appellant) v. Jonathan D. Brooke (Appellee) Court: Court of Appeals of Texas, Eastland Date: October 8, 2020 Case Number: No. 11-18-00288-CV Significance: Highlights the importance of precise and complete property descriptions in real estate contracts. This case serves as a reminder that even with clear intent between parties, failing to meet the Statute of Frauds’ requirements can render an agreement unenforceable. Summary: This case concerns a Farm and Ranch Contract (Agreement) for the sale of real property between Dayston, LLC (seller) and Jonathan D. Brooke (buyer). Brooke sued Dayston, seeking to void the Agreement due to an inadequate property description and the return of earnest money. The trial court granted summary judgment in favor of Brooke, declared the Agreement void, and ordered the earnest money returned. Main Themes: Statute of Frauds: Texas law requires contracts for the sale of real property to be in writing and signed by the parties. This includes a sufficiently specific description of the property. Property Description Adequacy: The case hinges on whether the property description within the Agreement and incorporated exhibits is sufficient to satisfy the Statute of Frauds. Admissibility of Extrinsic Evidence: While parol evidence can be used to clarify a property description, it cannot be used to supply essential elements missing from the written agreement. Important Ideas and Facts: The Agreement described the property using street addresses, acreage estimations, and references to larger tracts: “3379 FM Hwy 913, 515 Tennyson Dr, and +/- 81.50 AC of A0681 Smith Hancock and A0057 DW Babcock or as described on attached exhibit, also known as Exhibit A.” Exhibit A provided additional details but still referred to an imprecise “81.50 acres” from larger tracts, making the overall description insufficient. The court emphasized that a buyer's knowledge of the property cannot remedy an insufficient written description. As stated in Morrow v. Shotwell, "the knowledge and intent of the parties will not give validity to [an agreement]." 477 S.W.2d 538, 540 (Tex. 1972). Key Quotes: "The writing must furnish 'within itself or by reference to other identified writings then in existence, the means or data by which the particular land to be conveyed may be identified with specific certainty.'" - Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983) "Even when ‘the record leaves little doubt that the parties knew and understood what property was intended to be conveyed, ... the knowledge and intent of the parties will not give validity to the contract and neither will a plat made from extrinsic evidence.’" - Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) "The essential elements may never be supplied by parol." - Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945) Outcome: The Court of Appeals affirmed the trial court’s decision, finding that the Agreement’s property description was insufficient under the Statute of Frauds. Extrinsic evidence presented by Dayston was inadmissible to cure the deficient description, rendering the Agreement void. As a result, Brooke was entitled to the return of his earnest money.

  7. 11/09/2024

    Texas Supreme Court Addresses Prescriptive Easements

    Case: Albert v. Fort Worth & W. R.R. Court: Supreme Court of Texas Date: February 16, 2024 Significance: This case clarifies the application of prescriptive easement principles in Texas, highlighting the importance of open, notorious, continuous, and exclusive use adverse to the landowner's rights for the required period. It also distinguishes between using the same "way" and using the property "in the same way" for exclusivity purposes. Parties: Petitioners: Nathan D. Albert and Chisholm Trail Redi-Mix, LLC (Landowners) Respondent: Fort Worth & Western Railroad Company (Railroad) Facts: This case involves a dispute over a gravel road crossing that connects Albert's property to a highway, crossing over railroad tracks owned by Western. The property was originally part of a larger tract severed in 1887. While a previous owner obtained a license for personal and agricultural use of the crossing in the 1950s, subsequent owners, including Albert, continued using the crossing for various purposes without a license for over five decades. Western objected to this use beginning in 2006 but never physically blocked the crossing. Procedural History: The trial court, based on a jury verdict, found Albert entitled to easements by necessity, estoppel, and prescription over the crossing. Additionally, the jury found no trespass by Albert. The court of appeals reversed, finding insufficient evidence for the easements and that the lack of an easement constituted trespass. Issues: Whether sufficient evidence exists to support the jury's finding of a prescriptive easement. Whether the court of appeals erred in reversing the trial court's judgment on the prescriptive easement. Holding: The Supreme Court of Texas held that sufficient evidence supports the jury's finding of a prescriptive easement. Reasoning: The court emphasized the following evidence: Adverse Use: The court found that the continued use of the crossing by Albert and his predecessors, despite lacking a license, constituted adverse use. "Because only Meek ever attempted to acquire a license to use the gravel crossing, Meek’s successors in interest openly trespassed on the Railroad Tract when they continued to use the crossing." Open and Notorious Use: Testimony confirmed the crossing's consistent use by property owners was well known and readily observable, dating back to at least 1941. Continuous Use: Witness testimonies confirmed continuous use of the crossing for decades as the primary access point to the property. Exclusive Use: The court rejected Western's argument that their use of the railroad tracks negated exclusivity, stating, "The exclusivity analysis focuses on whether the landowner and the easement claimant 'both use the same way.'" The court clarified that the “way” at issue was the gravel road, not the railroad tracks themselves. Conclusion: The Supreme Court affirmed the court of appeals' reversal of the estoppel and necessity easements but reversed the finding regarding the prescriptive easement. They remanded the case back to the court of appeals to address the easement's boundaries and permitted uses. Key Quotes: "The exclusivity analysis focuses on whether the landowner and the easement claimant 'both use the same way.'"

  8. 11/09/2024

    Texas Courts Can Color In Details of Easements (Sometimes)

    Southwestern Electric Power Co. v. Lynch Court: Supreme Court of Texas Date Decided: February 28, 2020 Case Citation: 595 S.W.3d 678 Parties: Petitioner: Southwestern Electric Power Company (SWEPCO) Respondents: Kenneth Lynch, Tommy Batchelor, and Twant Wilson (Landowners) Significance: The case reaffirms the legal concept of "general easements" in Texas and clarifies their scope. It highlights the importance of clear and unambiguous language in easements to avoid disputes over their interpretation. It provides guidance for landowners and easement holders on the permissible use of general easements. Procedural History: The Landowners filed a declaratory judgment action to fix the width of SWEPCO's easements at thirty feet. The trial court ruled in favor of the Landowners, and the Court of Appeals affirmed. SWEPCO appealed to the Texas Supreme Court. Issue: Does the trial court have subject matter jurisdiction over the Landowners' declaratory judgment suit? What is the scope of SWEPCO's easements, specifically concerning their width? Holding: The trial court has subject matter jurisdiction because a justiciable controversy exists regarding the scope of the easements. The easements are general easements with no fixed width. SWEPCO's use is limited by reasonableness and necessity, and the express terms of the 1949 easements. Facts: In 1949, SWEPCO's predecessor acquired easements from the Landowners' predecessors-in-title for constructing and maintaining a transmission line. The easements did not specify a width but granted a right-of-way and ingress/egress rights for purposes related to the transmission line. SWEPCO modernized the transmission line in 2014-2015, replacing wooden poles with steel poles. The Landowners did not object to the modernization but subsequently filed suit, seeking a declaration that the easements were limited to a thirty-foot width. Reasoning: Jurisdiction: The court found a justiciable controversy because the parties disagreed on the scope of the easements: SWEPCO claimed they were general easements with no fixed width, while the Landowners argued for a fixed thirty-foot width. This disagreement presented a real and substantial conflict with tangible interests at stake. Easement Scope: The court analyzed the easement language and found it unambiguously granted general easements. Citing precedent, the court recognized general easements do not require a fixed width and allow for reasonable and necessary use by the easement holder. The court rejected the lower courts' reliance on extrinsic evidence (SWEPCO's historical use) to determine the width, emphasizing that doing so undermines the inherent flexibility of general easements. The court distinguished the case from Dwyer, where a fixed width was implied due to limited easement language and lack of a defined path, finding similarities instead with Knox, where an easement for a pipeline allowed for future expansion based on the broad language and contemplated future needs. Key Quotes: "A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner." - Coleman v. Forister (cited by the court) "The use of a general easement without a fixed width is a strategic decision that does not render an easement ambiguous or require a court to supply the missing term." - Court's opinion Disposition: The court affirmed the Court of Appeals' judgment regarding jurisdiction. The court reversed the Court of Appeals' judgment regarding the scope of the easements. The court rendered judgment in favor of SWEPCO, confirming the easements are general easements with no fixed width. Contact: Trey Wilson, Real Estate Attorney 210-354-7600 www.SanAntonioRealEstateLawyer.com

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This podcast created Created by Texas Real Estate Attorney and Water Lawyer Trey Wilson. The hosts explore Texas court decisions involving Real Estate Law and water rights through casual conversation designed to be understood by the average listener. Legal concepts addressed by Texas Courts are discussed in a fun and conversational tone. This podcast is not intended to offer legal advice, but rather, to entertain while educating the listener Contact Trey Wilson San Antonio Real Estate Lawyer Texas Water Rights Attorney ⁠www.SanAntonioRealEstateLawyer.com⁠ 210-354-7600

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  • Creator
    Trey Wilson, San Antonio Real Estate Lawyer and Texas Water Rights Attorney
  • Years Active
    2024 - 2025
  • Episodes
    18
  • Rating
    Clean
  • Copyright
    © Trey Wilson, San Antonio Real Estate Lawyer and Texas Water Rights Attorney
  • Show Website
    Deep Dives: Making Texas Real Estate Law Understandable