THE OKLAHOMA BAR JOURNAL 26 | JUNE 2024 In response to such question, the AG gave this response: As of November 1, 2023, section 121 requires the filing of an affidavit when recording a deed with an Oklahoma county clerk. (S.B. 212, 2023 Leg., 2023 Leg., 59th Sess., 2023 Okla. Sess. Laws ch. 327, §1). In addition, the amendments mandate this office promulgate template affidavits and vest it with the authority to declare one or more deeds exempt from the affidavit requirement. Pursuant to that authority, this office concludes that the following instruments and entities are exempt from the affidavit requirement in Section 121: 1. Deeds where the grantee is a domestic governmental body, including, for example, the United States, the State of Oklahoma or a political subdivision thereof, or a Tribe; 2. State or federal court orders and decrees in probate proceedings, divorce actions, quiet title actions to cure a defect in title, or other judicial orders and decrees affecting title to land; 3. Deeds that do not convey or otherwise transfer title or ownership when recording the instrument, including transfer on death deeds and correction deeds; and 4. Deeds conveying only oil and gas interests. In a more detailed discussion in the 2024 opinion, the AG explained that in addition to its ability to provide an answer to this formal question based on statutory interpretation, it was empowered by the Legislature (Section 121) to exempt any additional deeds where it deemed it was appropriate to do so. In regard to the AG’s grant of discretional authority under Section 121 to exempt additional deeds from the affidavit requirement, the AG explained (in footnote 2): This declaration does not determine whether these instruments are otherwise exempt from the provisions of section 121 and shall not be construed in such a manner. Instead, this declaration is made only under the express authority in title 60, section 121 (Supp.2023). Such authority provides: “The Attorney General shall promulgate a separate affidavit form for individuals and for business entities or trusts to comply with the requirements of this section, with the exception of those deeds which the Attorney General deems necessary when promulgating the affidavit form.”15 Specifically, in regard to whether deeds conveying title to “oil and gas” required an affidavit, the AG explained (in part D), based on a statutory construction: As detailed above, Oklahoma has both constitutional and statutory provisions restricting alien ownership of land. However, neither article XXII, section 1, nor title 60, section 121, supply a definition of “land”. However, it is settled that land is a subpart of real property, which is a subpart of property. 60 O.S. 2021 §§ 4-5. Further, until 2011, title 60 of the Oklahoma Statutes defined “land” as “the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock or other substance.” 60 O.S. Supp. 2010, §6. Relying on this definition, the Oklahoma Court of Civil Appeals determined that “[t]he word ‘land’ includes not only the surface, but also the minerals found below it.” Boswell Energy v Arrowhead Homes, 1999 OK CIV APP 36, ¶ 8, 976 p.2d 1113, 1116. Notably, however, following Boswell, the Legislature amended the definition of land in section 6 to state, as it currently does: A. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock or other substance, and includes any pore space. B. 1. A s used in this section, “pore space” means any interstitial space not occupied by soil or rock, within the solid material of the earth, and any cavity, hole, hollow or void space within the solid material of the earth. 2. As used in this section, pore space is real property and, until title to the pore space or rights, interests or estates in the pore space are separately transferred, pore space is property of the person or persons holding title to the land surface above it. 3. Notwithstanding the ownership of the pore space, nothing in this section shall alter or be 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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