THE OKLAHOMA BAR JOURNAL 24 | JUNE 2024 None of the scholarly articles listed above, which discuss many of these matters, mention this particular issue (“otherwise” acquisition), nor does the 1979 AG opinion or the Cartwright case deal with this issue. No language in the constitutional or statutory bars attempts to make the conveyance to an alien void ab initio, and the Oklahoma Supreme Court has held that the bar in this constitutional language is not self-executing but is achieved only by the completion of an escheat proceeding in a court.12 Also, logically, if the conveyance to an alien was automatically void, there would be no need for the constitutional and statutory bars to provide for a subsequent escheat process. The Legislature is empowered by the Constitution to establish an escheat process, but the same constitutional provisions make it clear that such escheat proceedings cannot begin until after 1) the alien acquires the title to the land and 2) an additional five years have elapsed. In addition, the Legislature itself recognized the title the alien acquired “improperly” is valid enough to be transferred to a third party (non-alien), so long as it occurs before the escheat proceeding begins. Such escheat proceeding is not begun until at least 30 days after the alien is given formal notice of the state’s intent to start such proceeding – giving the alien owner a short period of time to validly convey “fee simple title” to a third party (Section 124). There appears to be the possibility of confusion about whether all aliens can acquire and then hold title to land for at least five years or only a limited group. This is due to the Legislature’s choice of words used in Section 123 (which language is the same in both the original and current versions). This wording fails to repeat the language of the Constitution as to the allowed groups of alien grantees who can acquire and hold land for five years. The Constitution allows any alien to acquire land and to hold title to such land for five years when such alien acquires title “by devise, descent, or otherwise.” The Legislature appears to redefine this third group (or otherwise) to be narrowed to only those aliens who acquire title “by purchase, where such purchase is made under any legal proceeding foreclosing liens in favor of such alien.” (Section 123). In addition to allowing the acquisition and owning of title to “land” by an alien through probate (i.e., by “devise [granted by terms of a will] or descent [granted by statutory intestate succession]”), the Constitution expressly allows an alien to also acquire title in a means “otherwise” than just through a probate, meaning the ability to acquire title “in a different manner” – not just through a probate.13 Hence, it is arguable that the Legislature overstepped its authority when it redefined and shrank this third class to only consist of a foreclosing alien lien creditor. It is reasonable to argue that any alien person, whether an individual or a “business entity or trust,” can acquire title to land in Oklahoma and hold it for at least five years and, thereafter, continue to hold valid title until and unless an escheat proceeding is completed. Consequently, it appears that according to the Constitution, any alien – whether a resident or nonresident – can acquire and hold title to Oklahoma land for at least five years. Assuming this hypothesis is correct that any alien – whether a resident or nonresident – can acquire and hold title to land for five years, then any attempt by the Legislature to “bar” an alien from acquiring and holding title to land is unconstitutional. The Legislature’s new attempt under SB 212 (re: Section 121) to direct a state officer – the local county clerk – to refuse to accept a deed for recording because it fails to include an affidavit stating the grantee is not an alien appears to violate this constitutional provision. It should be noted that any deed is valid between the parties upon its execution and delivery to the grantee or a third party without any recording with the county clerk being needed for such validity.14 The lack of recording does prevent third parties from being on constructive notice of this transfer of title. Therefore, if the deed is not recorded, the alien grantee would be unable – in a practical sense – to either 1) secure a mortgage using this land as collateral or 2) get a title opinion or title insurance to sell the land to a third party because it would be impossible to confirm the alien’s recorded interest in this land. The SB 212 Bar to Aliens Owning ‘Land’ Does Not Apply to ‘Oil and Gas’ or ‘Minerals’ As noted above, the limitations against aliens, created by the constitutional and statutory bars, only pertain to “land.” The purpose of this portion of this article is not to provide a broad discussion of the history and nature of minerals in general or oil and gas in particular in Oklahoma. Instead, it is only to discuss the initial (2023) and then Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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