Imagine a scenario in which the property description in one of your leases, meticulously transcribed from a document in the record chain of title, is later found to describe only a portion of the lands thought to be included. You are suddenly at risk of losing part, if not all, of your investment. What do you do? The answer depends on whether the lease contains a “Mother Hubbard clause.”
What is a Mother Hubbard Clause?
The “Mother Hubbard” or “cover-all” clause is a common provision in an oil and gas lease1 that provides a mechanism to include lands not adequately described in the lease or certain interests that vest after the lease has been issued.2 It was primarily designed to protect against the loss of small strips of land that were unintentionally omitted from the property description. But it was also meant to ensure that certain types of after-acquired interests, such as those acquired through adverse possession, were covered by the lease.3 At its core, the Mother Hubbard clause is an insurance policy.
Although many variations exist, the Mother Hubbard clause typically consists of two basic components. The first is a property catch-all. For example, the property description might state that “in addition to the described premises the lease covers adjoining, contiguous, or adjacent lands owned by the lessor.” The second component is meant to cover any interests that vest in the lessor after the lease has been issued. This language will likely include a statement that “the property includes any interests which the lessor may hereafter acquire by revision, prescription or otherwise.” Most modern Mother Hubbard clauses include both of these safeguards.
Where Did This Name Come From?
Although it is unclear where the Mother Hubbard clause acquired its unique name, one possibility is that it was taken from the opening stanza of the “Old Mother Hubbard” nursery rhyme.
Old Mother Hubbard
Went to the cupboard
To give the poor dog a bone
When she came there
The cupboard was bare
And so the poor dog had none.
That is, when dealing with an inadequate property description, the unwitting lessee may find that the cupboard (property description) is bare, and so the poor lessee had none. Just as likely, the name may have come from the common use of the term “Mother Hubbard” in the late 1900’s to describe a long, loose-fitting, shapeless woman’s dress or a kind of cloak, with the shapeless dress or cloak being a reference to the ill-defined and amorphous nature of some property descriptions, especially those involving metes and bounds or moveable landmarks, such as fence posts or rocks. Regardless of the exact origin, the catchy name is easy to remember.
When drafting a Mother Hubbard clause, there are several issues that the thoughtful landman should be aware of. First, be careful not to use “and” when you mean “or.” At least one commentator has suggested that there is an important distinction between the phrases “adjoining, contiguous, and adjacent” and “adjoining, contiguous, or adjacent,” since “adjoining is more restrictive than either adjacent or contiguous.”4 The former requires that any additional land not properly described by the lease be adjoining, contiguous, and adjacent all at the same time. Depending on how a court interprets these words, this error could prevent the Mother Hubbard clause from covering the additional lands.
Second, beware of unique judicial interpretations. Some states differ on how they interpret the Mother Hubbard clause. For example, in Mississippi, a general Mother Hubbard clause does not cover large tracts of land.5 And in Texas, the Mother Hubbard clause has been limited to cover only those lands of which the parties did not have knowledge at the time the lease was issued.6 A cleverly crafted Mother Hubbard clause should comply with unique interpretations of the state in which the leased premises are located.
Third, if the bonus or rental has been paid on a per acreage basis, the lessee may need or want to tender additional bonus or rental to cover any addition acreage added to the lease through the Mother Hubbard clause. (Note: to avoid the question as to whether additional bonus or rental are required, the lessee may want to add language stating that the bonus and rental payments are based on the represented acreage, regardless of the actual acreage covered by the lease.)
Finally, although the Mother Hubbard clause may allow the lease to encompass lands inadequately described, the deficient description may not provide adequate notice to third parties under a state’s recording laws. To ensure that proper notice is given under a Mother Hubbard clause, the lessee should record an affidavit referencing the lease, quoting the Mother Hubbard clause from the lease, and describing the lands that were unintentionally omitted but are now included in the lease.
By including a carefully drafted Mother Hubbard clause in your lease form, you can protect your investment against latent defects in the property description or interest owned by the lessor.
1Mother Hubbard clauses are also found in deeds.
2See 1-2 William & Meyers, Oil and Gas Law § 221 (2014).
3Because oil and gas leases do not usually describe the lessor’s quantum of interest, this function is generally limited to situations where the interest vests in the lessor after the lease has been issued. When dealing with a deed, however, the Mother Hubbard clause can also ensure that the entire interest of the grantor is conveyed, even if inadequately or improperly described.
4Bruce M. Kramer, The “Mother Hubbard” or “Cover All” Clauses, http://www.emlf.org/clientuploads/directory/whitepaper/Kramer_92.pdf (internal quotation marks omitted).
5See Continental Oil Co. v. Walker, 117 So.2d 333 (Miss. 1960) (holding that a Mother Hubbard clause did not cover an additional 40 acres where the acreage listed in the lease only covered 40 acres).
6See B. H. Jones v. Jack Colle, 727 S.W.2d 262 (Tex. 1987)(finding that a lease did not cover adjoining tract of land that was known to exist by both parties at the time lease was issued)