Article / Authenticating Artwork

Art, just like any other piece of property, has value. The determination of a piece’s value can depend on several factors. However, the one that can affect the value most dramatically is the authenticity of the artwork; that is, the alleged authorship. Authenticating artwork can be a time-consuming and laborious process. If you are contemplating authenticating the artwork in your collection, there are some considerations that you should be aware of. Generally, you should understand the process of authentication and the methods by which authentication is done. But you should also recognize that the authentication process is not foolproof. The art market is rife with fraud and forgeries. Even absent fraud or forgery, art may still be misattributed by expert authenticators.  Commonly, a work of art, once considered “authentic,” will later be deemed inauthentic when new information and authentication methods become available. In a similar vein, artwork that has been declared authentic by experts may still raise controversy today as to who originally created it.1 Being prepared for the authentication process and its difficulties will help you successfully navigate the authentication process for your art collection.

The Authentication Process

In our other article, “The Importance of Valuing Art,” we looked at how the appraisal process for IRS tax purposes impacts the valuation of art. Unlike the appraisal process, authentication of art is not rooted in law. Instead, it relies upon the knowledge and experience of experts in the field of study. Authentication is the “means by which experts attribute a work of visual art to an artist, era, or culture.”2 An expert may be an “art historian, museum curator, art dealer, auction house expert, appraiser, archaeologist, [or] collector [].”3 Finding the right authenticator is an important first step in the authentication process. You should look for an authenticator who specializes or is familiar with authentications in the style, artist, school, or era of your artwork to ensure the most accurate examination into the authenticity of your collection. 

The end goal of authenticating art should be, for an expert or group of experts, to properly determine the original creator of the art, by analyzing several factors. These factors include the age of the artwork, the medium used, the history of ownership, display, and exhibition of the artwork, the rarity and similarity of the piece, and the history of value of the artwork. Traditionally, there are four primary methods used to establish these factors and authenticate a work of art: stylistic (expert) opinions, provenance, scientific analysis, and catalogue raisonné. 

  1. Stylistic Opinions

Stylistic opinions, sometimes referred to as “connoisseurship,” are opinions rendered by art experts who have specialized knowledge about particular areas of art.4 The experts analyze the stylistic aspects of the artwork in order to determine the original artist, creation date, era which the art was a part of, and style influences affecting the art.5 It is argued that stylistic analysis is “essential because, standing alone, the other methods [] are seldom adequate” for determining the authorship of a work of art.6 Therefore, a priority in authenticating artwork should be to obtain a sound stylistic expert opinion.

  1. Provenance

In authenticating artwork, it is imperative that you can trace the ownership of the art. Provenance is the act of tracing the documented history of a piece of ownership which includes ownership, display, exhibition, and leasing history.7 Provenance is strange in that it can be the simplest method of authentication, but only as long as all of the documentation is in place. Well-kept documentation makes it easy to trace ownership of a piece of art back in time. Forgers and fraudsters have often made provenance difficult by faking or altogether omitting documents in the record of title. Even in non-fraudulent transactions, there are often times when buyer and seller will not fully document the sale of the artwork. This creates gaps in title where there is no knowledge as to what happened to the art or who it belonged to. With any gap in title, the authenticity and overall value of the art becomes questionable. Before you obtain artwork, you should always complete a title search of the artwork. Then, you should maintain proper documentation as to any sale, restoration, exhibition, display, or lease of the artwork under your ownership.

  1. Scientific Analysis

Modern technological innovations have provided opportunities for advanced examinations of artwork. Scientific analysis utilizes objective testing measurements to identify whether pieces of art are fake.8 Current available methods include radiocarbon dating, thermo-luminescent analysis, x-ray photography, chemical analysis of mediums and canvases, infrared imaging, and comparative analysis.9 Collectively, these methods can show things like brushstroke direction, paint build-up, aging patterns, and saturation consistency.10 

It should be noted, however, that scientific analysis can never be used to positively prove authenticity. Rather, it can only be used to prove that a piece of art is not a fake or a forgery.11 Scientific analysis works in conjunction with the other primary methods of authentication to act as an elimination test; clearing risk factors that would lead an expert to believe a piece of art is a fake. Because scientific analysis is limited in measurable and testable qualities of the artwork, it can be “beaten.” As the art expert, Otto Kurz, has summarized, scientific methods of authentication are only as effective as the faker is ineffective at replication.12 If a forger anticipates what a scientific test is looking for, and they have the proper skills, they can replicate a work of art in such a way that a scientific test would be unsuccessful in detecting the work as a fake.13

  1. Catalogue Raisonné

Prominent artists will often have a collective reference of their works of art called a catalogue raisonné. This catalogue is a “comprehensive and authoritative cataloguing of every artwork made by an artist.”14 The intent of having a catalogue is to create a “definitive accounting of the works of an artist and [to] provide[] for each known work, the size, year of creation, where it was exhibited, or when it was discussed in publications.”15 Each artist will have their own catalogue which is typically maintained by the artist’s foundation. Sometimes, these catalogues will contain information on known fakes and forgeries of an artist’s works or pieces which are questionable as to their relation to the claimed artist.16 For example, “… the Jackson Pollock catalogue raisonné [] has a “problems for study” section which has works which can neither be authenticated nor rejected, as well as a false attribution section which contains works maliciously or mistakenly misattributed to Pollock.”17 Within the art industry, catalogues are considered well-respected sources of information in terms of valuing or authenticating works of an artist. The main drawback is that catalogues are created for more famous artists. As such, if you are trying to authenticate the art of a lesser-known artist, they may not have a catalogue available to use. 

Inauthentic Works of Art

If you can combine the four primary methods of authentication described in the previous sections, you will have a fairly good grasp on the authorship of the art in your possession. However, you should remain cautious because inauthentic works of art pervade the market. One of the most famous examples of fake arts flooding the market is the story of Elmyr de Hory. Elmyr was born in Hungary in 1906 and became an astute artist in his early life. During World War II, he was imprisoned and later escaped a Berlin prison hospital. Post-war, put his art skills to work by copying many different famous works and selling them under the guise that they belonged to a Hungarian Estate. Soon, his works would be displayed in famous galleries all over Europe as authentic pieces of work ranging from Picasso to Renoir. Eventually, some of these works were discovered to be fakes and his string of faking famous works came to an end.18  

Stories like Elmyr’s are few and far between today. However, there are likely people in the world today attempting to find new ways to make a living off of forged or fraudulent art. Thus, it is important to distinguish the difference between some common terms regarding inauthentic works of art. “The words counterfeit, imitation, and forgery all may seem to overlap, but they carry different meanings” to experts, auction houses, and art investors or collectors.19 First, a counterfeit is a piece of art that imitates another in violation of the law. Second, an imitation is a piece of art that attempts to resemble another piece in some way. But initially, an imitation is not a violation of the law like a counterfeit. Third, a forgery is a piece of art that has been altered in some way which harms the rights of the artist (or their estate), owner, or buyer.20 Lastly, misattribution is when art is incorrectly attributed to a particular artist.21

Breaking these terms down further, counterfeits and imitations are “fakes” which are “work[s] of art made to resemble an existing work” while “a forgery is a work of art passed off as an original work.”22 A forgery is usually passed off as authentic by forging the original artist’s signature or using methods of artists that are unique to them (i.e. brushstroke style, specific color mixing, medium, or topic). Regarding counterfeits and imitations, it is certainly a case of “every square is a rectangle, but not all rectangles are squares.” Imitating former works of art tends to be the way that newer artists learn techniques of the artists who came before them.23 But an imitation does not constitute being a counterfeit until someone attempts to pass it off as authentic or purposefully misattributes it. 

The act of misattribution can be intentional or unintentional. When intentionally done, fakers often make copies of famous works, use various methods to age the piece, and then try to pass it off as being created by a famous artist. Unintentional misattribution can happen as well, even with art experts. Sometimes, there are significant gaps in title or little information available regarding a certain work of art. Due to gaps and lack of information, it becomes challenging to verify the authenticity of a work of art until additional information is discovered about the work. Unfortunately, this means that there can be significant legal and economic consequences of authentication, even if done properly. 


Authentication plays a paramount role in the art market. It is the principal way by which we attribute value to a piece of art or a collection of works. Though it is not a perfect process, the combination of the primary methods used in authentication provide the best solution in determining the original authorship of artwork. As an owner, buyer, or seller, understanding how this process works, will help you properly authenticate the art in your collection or that you wish to add to your collection.


  1. See Katie Dixon & Zachary Shufro, Note: Risky Business: Fraud, Authenticity, and Limited Legal Protections in the High Art Market, 10 N.Y.U. J. of Intell. Prop. & Ent. Law 246 (2021). The authors here reference the case of Leonardo da Vinci’s famed Salvator Mundi, which was considered “missing” from his other works until one was restored and authenticated in 2008. This history of this piece’s ownership dates back to 1649 but has significant gaps in ownership to the present day. Many experts remain skeptical that the authenticated work is the real creation of Leonardo da Vinci because there are over 30 copies and variations of the same work that exist in the world. Id. at 248-250.
  2. Derek Fincham, Authenticating Art by Valuing Art Experts, 86 Miss. L.J. 567, 590 (2017).
  3. Id.
  4. See Justine Mitsuko Bonner, Let Them Authenticate: Deterring Art Fraud, 24 UCLA Ent. L. Rev. 19, 30 (Spring 2017); see also Fincham, supra at 598.
  5. Id.
  6. See Bonner, supra at 30.
  7. Id.
  8. See id.
  9. Id. at 31.
  10. Fincham, supra at 600-01.
  11. Id.
  12. See Otto Kurz, Fakes: A Handbook for Collectors and Students, at 23 (1948).
  13. Id.
  14. Bonner, supra at 32 (quoting Caroline Gabrielli, Preparing the Catalogue Raisonne?: A Guideline for Publishing Online, METRO. NY LIBRARY COUNCIL (2014),
  15. Fincham, supra at 593.
  16. Id. at 593-594.
  17. Id.
  18. See Leila A Amineddoleh, Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors, 34 Cardozo Arts & Ent. L.J. 59, 93-94 (2016).
  19. Fincham, supra. at 569.
  20. See id. at 569-70.
  21. Id.
  22. Id. at 570.
  23. Derek Fincham notes that “art will always be copied because artists learn their craft through responsible imitation. Artists will imitate to learn the techniques of their forebears in order to pursue their craft.” Fincham, supra at 572.

Article / The Importance of Valuating Art

Valuation is an important part of owning any type of property. It is defined as the process by which property is examined and given an estimated monetary value.1 Putting a monetary value on property such as artwork can provide you peace of mind knowing how much it is worth. This also allows for benefits in income tax, gift tax, and estate tax scenarios. If you plan to use your art for tax benefits, you should take great care in ensuring proper valuation of the pieces of art in your collection. The Internal Revenue Service (“IRS”) looks closely at the actual value of your art when it is claimed for any type of deduction. Below are some considerations when going valuing your artwork. In particular, these considerations look at the process required by the IRS in order to use artwork for tax benefits.

When should I get my art valued?

If you intend to donate art for tax benefits, you will need an appraisal for each piece of artwork or collection that you intend to utilize that calendar year that is estimated to have a base value of $5,000 or more.2  Similar to valuation, appraisal is when an expert, called an appraiser, analyzes the artwork using their experience to provide a fair market value for the art. The fair market value is the price a piece of art would be in an exchange between a willing buyer and a willing seller, both of which are not under any compulsion to buy or sell, and both having reasonable knowledge of the relevant facts.3 Further, the fair market value is based on the market in which the art would most commonly be sold to the public.4

How do I get a proper appraisal?

The appraisal process begins with selecting a qualified appraiser. The IRS considers a qualified appraiser as a person who holds themselves out as an appraiser, who is an expert in that particular piece of artwork, and who is independent from the donor.5 An appraiser is fully independent when they are not the donor or donee, they are not employed by the donor or donee, they were not a party to the transaction by which the donor acquired the art originally, and they are not a related party as defined under Treasury Regulation § 267(b).6 A qualified appraiser also understands that they are liable for making false or fraudulent overstatements of value in regards to the artwork being appraised.7 

When selecting an appraiser, it is important to make sure the appraiser verifies their credentials and is experienced in the specific era, style, or artist of the work being appraised. The IRS meticulously looks at the qualifications of appraisers to reduce the risk of overvaluation or fraudulent valuation. Carefully selecting the right appraiser can increase the validity of the appraisal and lessen the risk of the IRS inquiring about your art. 

Once a qualified appraiser is selected, then the qualified appraisal process can begin. A qualified appraisal is an appraisal prepared by a qualified appraiser no more than 60 days before the date that the artwork is to be donated.8 The appraisal must be signed and dated by the appraiser, returned to the taxpayer before the due date of their income tax return,9 and contain the following information:

  1. A detailed description of the property;
  2. The physical condition of the property;
  3. Date or expected date of the donation;
  4. The terms of any expected or entered into agreement by or on behalf of the donor that relates to the use, sale, or other disposition of the contributed property;
  5. Name, address, and taxpayer ID of the qualified appraiser;
  6. Detailed description of the qualified appraiser’s background and experience;
  7. Statement that the appraisal was prepared for income tax purposes;
  8. Date on which property was valued;
  9. Appraised fair market value of the property;
  10. Method by which the property was valuated;
  11. The specific basis for valuation such as any specific comparable sales transactions, quoted prices of similar works in dealers’ catalogues, or the economic state of the art market around the time of valuation; and
  12. A description of the fee arrangement between the donor and appraiser.10

Once the appraisal is complete, the report associated with the appraisal is attached to the income tax form that is being filed for the current tax year. The more precise and complete the appraisal form is, the less likely it is to be questioned by the IRS. Fortunately, the IRS has a form, called the Form 8283, which satisfies all the requirements listed above and is available for the public to use.11 Another helpful tip is to have your appraiser use the Uniform Standards of Professional Appraisal Practice (“USPAP”). The IRS issued an official notice, in October 2006 which stated that an appraisal would be deemed qualified if it met all the requirements of existing IRS regulations and was consistent with generally accepted appraisal standards.12 To have generally accepted appraisal standards, the appraisal must be done in conformity to the provisions of the USPAP.13

Lastly, for any charitable donations of artwork or collections of art, the IRS requires that you maintain proper records about the donated artwork. These records must be consistently updated and contain the following:

  1. Name of charitable organization you are donating to;
  2. Date and location of the donation;
  3. A proper description of the property donated;
  4. The fair market value of the property, the method used in determining the fair market value, and a signed copy of the appraisal;
  5. Factual details on section 170(e)(1) property;14
  6. Special rules for partial-interest contributions; and 
  7. The terms of any agreement or understanding entered into, by or on behalf of the taxpayer that relates to the use, sale, or disposition of the property contributed

Additionally, if the artwork or collection is valued greater than $500, further records must be kept indicating the manner and approximate date of acquisition of the property, and the cost basis of the property. Make sure to keep these records accurate, accessible, and in duplicate in the event that the IRS requests them. 

My appraisal was audited. What happens next?

Even if your tax return is properly filed, the IRS may audit the validity of an appraisal. Most often, the IRS will challenge an appraisal report if it does not consider all the applicable factors, the report is a statement of opinion not supported by an analysis of relevant facts, the report is inconsistent with known factors, or the opinion of the appraiser is beyond reason or is arbitrary.16

Any art that is flagged to audit or that is valued at $50,000 or more will be reviewed by a special board of the IRS called the Art Advisory Panel. This panel consists of several art experts that assist the IRS in determining whether submitted appraisals realistically value the art or collection.17 The panel has its own art appraisers that will determine the fair market value of the art in question. Subsequently, the panel will provide a written statement within 45 days of the date of the request. This written statement must include an explanation for the basis of how fair market value was determined, why the value was different than the original appraisal value, what computations were used in determining the value, and a copy of any expert appraisal made for or by the IRS.18 The fair market value of the art determined by the panel’s appraisers is only a recommendation. However, the IRS almost always considers that value binding. 

What happens if my artwork is ruled “overvalued?”

If the IRS determines that the appraised artwork was overvalued, there are monetary penalties that may apply. The IRS will charge a 20% penalty on any underpayment of taxes for a “substantial valuation misstatement.”19 For artwork, a substantial valuation misstatement occurs when the original appraisal valued the art at 150% or more of the amount determined by the IRS to be the appropriate fair market value.20 The 20% penalty is bumped up to 40% if the original appraisal valued the art at 200% or more than the determined value, which is considered a “gross valuation misstatement.”21 There is a limited exception that does not penalize you for underpayment if you can show that there was reasonable cause for the underpayment and that you acted in good faith regarding the value of the claimed art.22 In addition to you having to pay a penalty, the appraiser who performed the appraisal may be liable as well.


It is important to get your artwork properly appraised. Artwork can benefit you with tax deductions if you properly valuate the art through a qualified appraisal conducted by a qualified appraiser. Make sure to take care in selecting who your appraiser is and know ahead of time what their appraisal method will be. Additionally, be sure your appraisal is submitted with your tax return for that year and is as complete as possible. This will help reduce the likelihood that your tax return will be audited by the IRS. If these factors are considered, your art appraisal process will be smoother and more successful. 


  1. “Valuation.” Dictionary, Merriam-Webster, /valuation. Accessed 28 Aug. 2022.
  2. Tax Reform Act of 1984 Section 155(a)(2); 26 C.F.R. § 1.170A-13(c)(1).
  3. 26 C.F.R. §§ 20.2031-1 and 20.2031-6.
  4. 26 C.F.R. § 20.2031-1.
  5. Tax Reform Act of 1984 Section 155(a)(2); 26 C.F.R. § 1.170A-13(c)(5)(i).
  6. Id. 26 C.F.R. § 267(b) provides an extensive list of who is defined as a “related person.” 
  7. Tax Reform Act of 1984 Section 155(a)(2); 26 C.F.R. § 1.170A-13(c)(5)(i).
  8. Tax Reform Act of 1984 Section 155(a)(2); 26 C.F.R. § 1.170A-13(c)(3)(i).
  9. 26 C.F.R. § 1.170A-13(c)(3)(iv)(B).
  10. 26 C.F.R. § 1.170A-13(c)(4). It should be noted that the fee arrangement between the donor and the appraiser cannot be based on a percentage of the value of the appraised artwork.
  11. Form 8283 available at: 
  12. Notice 2006-96, 2006-46 IRB 902, 10/19/2006.
  13. Id.
  14. I.R.C. § 170(e)(1) states that “[a]ny qualified conservation contribution shall be allowed to the extent the aggregate of such contributions does not exceed the excess of 50 percent of the taxpayer’s contribution base (being the taxpayer’s overall adjusted gross income) over the amount of all other charitable contributions allowable under this paragraph.” A qualified conservation contribution is “means a contribution— (A) of a qualified real property interest, (B) to a qualified organization, (C) exclusively for conservation purposes.”
  15. 26 C.F.R. § 1.170A-13(b).
  16. Ralph E. Lerner & Judith Bresler, Art Law: The Guide for Collectors, Investors, Dealers, & Artists, Volume II, 1232-33, (4th ed. 2012).
  17. Id. at 1240-41; see also Valuing Art in an Estate: New Concerns, Anne-Marie Rhodes, 31 Cardozo Arts & Ent LJ 45, 64, Winter 2012.
  18. I.R.C. § 7517.
  19. I.R.C. §§ 6662(a) and (b)(3).
  20. I.R.C. § 6662(e).
  21. I.R.C. § 6662(h)(1).
  22. This exception requires that both 1) the claimed value was based on a qualified appraisal made by a qualified appraiser; and 2) the taxpayer made a good faith investigation into the value of the contributed property. I.R.C. § 6664(c)(2).

Article / Texas Liens Against Mineral Property

Although not as volatile as prior years, last year’s lower oil and gas prices hit the earnings of many operators and service providers—and there is no relief in sight with oil prices down 13% since the start of the year after a sluggish global economy and the coronavirus curbed demand.  2020 could be an interesting year. In times of lower prices, I seem to get more calls about mineral liens. Lenders and service providers call me inquiring about how to perfect the liens—operators call me to determine the scope of their liability or extinguish these burdens. Regardless of what side you find yourself on, it is useful to know a little bit about these unique liens and how they might impact your operations.    

Chapter 56 of the Texas Property Code creates a lien for a contractor or subcontractor who, under an express or implied contract, performs labor or furnishes materials related to the drilling or operating of an oil or gas well or an oil or gas pipeline.  

This is the exclusive statute governing liens of this type. Persons entitled to liens under this Chapter are not entitled to liens provided by other statutes.  Although a court may liberally construe the enforcement provisions of the statute to effectuate its remedial nature, it will strictly apply the specific requirements for the lien’s creation; therefore, it is essential to review the precise language of the Chapter. 

The statute and the courts have set a relatively broad definition of who qualifies for the lien and what services are covered, but there are some notable exceptions.  For instance, the term “labor” is usually held to mean manual labor; thus, those providing professional services, such as accounting or land services, may be unable to assert a lien.  Further, even certain types of physical services, such as the dismantling of a pipeline no longer in use, have been held not to qualify for the protection of the statute. 

The statute also lists the property interests that are subject to the lien.  Perhaps most importantly, the lien applies to the land, leasehold, well, pipeline, and lease for which labor was performed or materials were supplied.  However, only the property interests of the owner contracting with the contractor are covered by the lien. Furthermore, an owner is not subject to liability greater than the amount detailed in the contract between owner and contractor.  Therefore, if the owner has paid a contractor in full before receiving notice of the subcontractor’s claim, the property is not subject to a lien.  

A contractor’s lien is perfected if, not later than six months after the day the indebtedness accrues, a claimant files an affidavit with the county clerk stating: (1) the name of the mineral property owner, if known; (2) the name and address of the claimant; (3) the dates of performance or furnishing; (4) a description of the property interest involved; and (5) an itemized list of amounts claimed. 

For a subcontractor’s lien, the subcontractor must serve the property owner with a written notice of the lien no later than the tenth day before the day the affidavit is filed.  In addition to the five items above, the subcontractor’s affidavit must include: (1) the name of the person for whom labor was performed or materials were furnished; and (2) a statement that the subcontractor timely served the required notice.

The steps to perfect these liens is relatively straightforward, nonetheless it is crucial that you meticulously follow the prescribed procedures.  Additionally, there are a few issues that merit special consideration. First, you must strictly adhere to the time limits set by the statute. Failure to do so will be fatal to the lien.    

Second, accurately and sufficiently describe the property interest subject to lien.  Often my client gives me nothing other than a county and a well name, necessitating further investigation to determine a proper description of the lands, leases, and units burdened by the lien.

Third, do not file an affidavit of lien in instances where deadlines have passed, or circumstances prevent you from qualifying for a lien.  An affidavit of a lien is a cloud on title; filing one without merit creates exposure to a suit for slander of title.

Assuming the lien has been properly perfected, its priority will relate back to the time that work was first performed, or materials were first supplied–not upon the date the work ended or the date the affidavit was filed.  When multiple Chapter 56 liens exist against a single property, however, the liens are of equal priority and the holders will share any foreclosure proceeds on a pro rata basis.

If you are otherwise unable to reach a settlement, enforcement of the lien will require judicial foreclosure. The procedure to foreclose these liens is the same as that provided for traditional mechanics’ liens. The suit must be brought within two years after the date of filing the lien or within one year after completion of the work, whichever is later.

Hopefully, you won’t encounter any mineral lien issues this year, but if you do it is important to act promptly to protect your rights.

Case Study / Extinguishment of Oil and Gas Interests Under the Ohio Marketable Title Act

The Marketable Title Act

In 2016 the Ohio Supreme Court held in Corban v. Chesapeake Exploration, LLC (2016-Ohio-5796) that the 1989 Dormant Mineral Act (“DMA”) (O.R.C. § 5301.56) was not a self-executing statue.  Since then surface owners have been turning to the Ohio Marketable Title Act (“MTA”) (O.R.C. § 5301.47-5301.56) as an alternative option to extinguish severed mineral interests.  However, uncertainty exists as to whether the MTA can still be used to extinguish mineral interests after enactment of the DMA in 1989.

The MTA was enacted to simplify and facilitate land title transactions.  The MTA provides that a person with an unbroken chain of title to an interest for forty years has marketable record title to such interest (O.R.C. § 5301.48).  “Record Marketable Title” is defined as a title of record “which operates to extinguish such interests and claims, existing prior to the effective date of the root of title” (O.R.C. § 5301.47(A)).  A root of title is a “conveyance or other transaction in the chain of title of a person, purporting to create the interest claimed by such person” that has been of record for at least forty years prior to the time when marketability is being determined (O.R.C. § 5301.47(A)).

The Blackstone Decision

In December 2018, the Ohio Supreme Court issued the opinion in Blackstone v. Moore (2018-Ohio-4959),  holding that reference to the type of interest created and to whom the interest was granted in a “root of title” deed was a sufficiently specific reference under Ohio Revised Code Section 5301.49(A).   The court created a three-step inquiry to determine whether reference to an interest was sufficiently specific: (1) Is there an interest described within the chain of title? (2) If so, is the reference to that interest a “general reference”? (3) If the answers to the first two questions are yes, does the general reference contain a specific identification of a recorded title transaction (Blackstone at ¶ 12).  The interest at issue in Blackstone was a reserved royalty interest, indicating that the MTA is applicable to minerals.  However, the court was only presented with the question of whether the particular reference at issue in the case was sufficiently specific under the MTA.   Since the appellants conceded that the DMA could not be applied, the court did not address the interplay between the MTA and the DMA. 

Blackstone contains a concurrence from J. DeGanaro emphasizing the narrow scope of the opinion and questioning whether the MTA continues to apply to minerals after enactment of the more specific DMA.  She notes that the result reached in the opinion did not hinge on the nature of the interest and it should not be read to imply that the MTA still applies to minerals.

Appellate Decisions Post-Blackstone

The Seventh District Court of Appeals has issued a number of decisions since Blackstone holding: (i) oil and gas interests are subject to both the MTA and DMA; (ii) a general exception to the interest claimed in a deed does not prevent that deed from being a root of title deed; and (iii) the MTA can validate a reserved interest that would otherwise be void under the Duhig Rule.

  • Oil and gas interests are subject to both the MTA and DMA:

In February 2019, the Seventh District Court of Appeals issued decisions in Hickman v. Consolidation Coal Company (2019-Ohio-492) and Miller v. Mellott (2019-Ohio-504) citing Blackstone for the proposition that mineral interests are subject to both the MTA and DMA.  The court did not address the issue of whether the 40-year examination period under the MTA could extend beyond the enactment of the DMA.  However, the root of title deeds from both cases resulted in the establishment of record marketable title after 1989, implying that parties seeking to extinguish mineral interests could use the MTA even if record marketable title to the mineral interest could not be established until after 1989.  However, in both cases the 40-year examination period did not extend beyond the enactment of the 2006 DMA.

The Seventh District explicitly held that the parties could avail themselves of either the MTA or DMA in Stalder v. Bucher (2019-Ohio-936).  The court recited that the MTA does not differentiate between interests, but applies to all interests, and noted the Ohio Supreme Court applied the MTA to a mineral interest in Blackstone (See Stalder at ¶ 15 and 16).  Later decisions expanded their reasoning, citing dicta in Corban and providing specific examples of how the MTA and DMA do not conflict (See Senterra Ltd. v. Winland, 2019-Ohio-4387).  

On January 21, 2020, the Ohio Supreme Court accepted an appeal in West v. Bode (2019-Ohio-4092) from the Seventh District Court of Appeals under the proposition of law that the DMA is the specific statue that supersedes and controls over the MTA.  The decision in this case should provide clarity regarding the interplay between the MTA and DMA.

  • General reference to an interest in a “root of title” deed:

In Hickman and Miller, the Seventh District cited precedent from the 1980s and held that a root of title deed cannot include an exception and reservation of the interest claimed as extinguished (Hickman at ¶ 26; Miller at ¶ 27). These holdings seem to be in conflict with Blackstone, where the Ohio Supreme Court applied the MTA in a scenario where the root of title deed contained an exception of the interest claimed by the landowners.  Recently, the Seventh District clarified their holdings in Hickman and Miller in Applications for Reconsideration (See Hickman v. Consolidation Coal Company, (2019-Ohio-4077), and Miller v. Mellott, (2019-Ohio-4084)), describing that they could not treat reservation language in the root of title deeds as repetitions due to a gap in title in the court record between the severance deeds and root of title deeds.  As a result, the court did not presume evidence outside of the record and treated the reservation language in the root of title deeds as new reservations.  

In Senterra Ltd. the Seventh District applied the three-part test from Blackstone to two severed mineral interests. The conveyances after the two severances contain language which except and reserve oil and gas rights without a prior deed reference to the specific severance documents or the persons who reserved the interests.  Under the second part of the Blackstone test the court determined that the references were general rather than specific, noting that there is no indication of who reserved the interest and it is unclear what interest is being referenced in the repeated reservation language (See Senterra Ltd. at ¶ 83).  The court then moved on to the third part of the test in Blackstone and found that there is no specific identification of a recorded title transaction in the root of title and subsequent deeds (Id. at ¶ 84).

  • Implication of Senterra on Duhig Rule and fractional mineral interests: 

The third assignment of error in Senterra involved the interplay of the Marketable Title Act and the Duhig Rule, which was applied in Ohio by the Seventh District in Talbot v. Ward (2017-Ohio-9213). The Duhig Rule provides that a reservation of minerals will fail if a grantor breaches a warranty of title when a grant and reservation in a deed cannot be given full effect.  Under the facts, in 1954, George Russell conveyed an 86 acre tract, “EXCEPTING and reserving to George W. Russell, his heirs and assigns, one-fourth (1/4) of the oil and gas in and under lying the above described property.”  Therefore, under the language in the deed, George Russell conveyed a 3/4 oil and gas interest. However, absent any application of the MTA, at the time of the conveyance he was only vested with a 3/8 oil and gas interest. Therefore, he was in violation of the warranty of title and his 1/4 oil and gas reservation would be void under Duhig.  However, the court distinguished the facts of the case from the earlier decision applying Duhig, noting that the MTA validated George Russell’s 1954 reservation because it extinguished the earlier mineral reservations.  These reservations were not preserved and no one attempted to correct the record that George Russell’s 1954 reservation was incorrect.  Therefore, the MTA validated the reservation that would have otherwise failed under Duhig.

This holding creates various complications in determining mineral ownership in situations where the chain of title contains multiple reservations of fractional interests with repeating reservation language, as an MTA analysis would need to be conducted for each deed.


The Seventh District has applied a broad interpretation of the holding in Blackstone, which only held that “a reference that includes the type of interest created and to whom the interest was granted is sufficiently specific to preserve the interest in the record title” (See Blackstone at ¶ 18).  Though the Ohio Supreme Court did apply the MTA to a mineral interest, the court did not address whether the appropriate 40-year examination period could extend beyond the enactment of either the 1989 or 2006 DMA.  The forthcoming Ohio Supreme Court decision in West v. Bode should determine whether the MTA can be used to extinguish severed mineral interests after the 1989 DMA and/or 2006 DMA, which will provide some needed clarity for surface owners, mineral owners, and oil and gas operators.