Cover-All Clauses

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Cover-All Clauses

 

 Some leases and deeds contain cover-all clauses, which are also known as “Mother Hubbard” clauses.  An example of a cover-all clause is:

This lease also covers and includes, in addition to that above described, all land, if any, contiguous or adjacent to or adjoining the land above described and (a) owned or claimed by Lessor by limitation, prescription, possession, reversion, or unrecorded instrument or (b) as to which Lessor has a preference right of acquisition.

 

Whitehead v. Johnston, 467 So. 2d 240, 241 (Ala. 1985).
 In the Whitehead case, the Alabama Supreme Court found that the cover-all clause picked up a one acre strip of land that adjoined a five acre tract described in an oil and gas lease.  Finding the Mother Hubbard clause enforceable, the court distinguished the facts present in Whitehead (i.e. Mother Hubbard covers one acre strip at joining five acre tract) from the facts in the leading Texas case of Smith v. Allison, 301 S.W.2d 608 (Tex. 1956).  In Smith v. Allison,  the Texas Supreme Court refused to enforce a Mother Hubbard clause where the land sought to be included was substantially larger than the area included within the particular description.  The Whitehead court wrote:

The Smith case, in which the Court found that the deed was ambiguous, is distinguishable from the case at hand because in Smith the tract of land sought to be included pursuant to the Mother Hubbard clause was substantially larger than the area included within the particular description. Thus, in Smith, the court found the deed was ambiguous, because inclusion of the land would thwart the purpose of the clause and the parties’ intent. That is to say that the clause was intended to apply only to small tracts of land adjacent to specifically described land, but inadvertently omitted, or small tracts of land which were said to constitute a part of the described tracts.

 

Whitehead v. Johnston, 467 So.2d at 242.

 The court in the Whitehead decision limited its holding to the facts of that case, where the Mother Hubbard clause picked up one acre adjacent to a five acre tract that was particularly described.  In this regard, the court held:

We need not decide when and under what circumstances a lease will be deemed ambiguous when the lease or deed contains a specific description of land and a Mother Hubbard clause. We only hold that under the present facts there is no ambiguity, as a matter of law.

 

 Because of Whitehead, we know that cover-all clauses will work to pick up smaller acreage adjacent to the land described in the lease or the deed.  If the outside acreage is much larger that the land described in the lease or the deed, a question remains whether the Alabama Supreme Court would enforce the cover-all clause to include the outside and adjacent land or would take the approach of the Texas Supreme Court in Smith v. Allison.

Copyright 2011 by Edward G, Hawkins. All rights reserved.