Updated as of March 28, 2024
The Michigan State legislature amended the Marketable Record Title Act (MRTA) in 2019. While many community association boards and managers may not be familiar with the MRTA since its provisions historically have not affected community association administration, the 2019 amendments make it necessary for some homeowners associations to act before September 29, 2025. Subdivisions/homeowners associations whose restrictions were recorded in or prior to 1985 must consider whether to file a Notice of Claim or seek to amend their restrictions to ensure something is recorded before September 29, 2025.
Below is a summary of the MRTA provisions and how they may impact community associations. Follow this link to a prior post with detailed analysis of the statute.
The MRTA was originally established to simplify real estate title searches by limiting the requirement to a 40-year history. The Act underwent significant amendments in 2019 and 2022. Originally, the MRTA allowed title examiners to establish marketable title by tracing an unbroken chain of ownership back 40 years, instead of to the original owner. However, complexities arose with older deed restrictions referenced in current deeds, leading to amendments in 2019. These amendments appear to require specific references to older restrictions in documents recorded within the 40-year period to maintain their validity.
Despite these changes, there remains uncertainty, particularly around homeowner association restrictions in deeds recorded over 40 years ago. The legislative history suggests these could be voided unless specific MRTA procedures are followed. Further amendments in 2022 sought to protect land use restrictions, but concerns persist, especially regarding provisions in homeowner association declarations that do not relate to land use, such as assessment payments. This ongoing ambiguity signals potential legal challenges for older subdivisions. The legislature has allowed for a period during which claims of interest could be recorded to preserve interests older than 40 years, which was subsequently extended through March 29, 2024, and extended again through September 29, 2025.
Steps Associations Should Take
While we believe associations to be in a defensible position if they do not take further action, we do not believe associations should risk an enterprising owner pursuing litigation over this issue. A bad decision could wipe out recorded restrictions and leave them unenforceable. Given the potentially significant and detrimental consequences of the 2019 MRTA amendments, and because subdivision declaration restrictions may not be explicitly exempted by further amendment to the MRTA, certain subdivision communities should act before September 29, 2025.
If the subdivision restrictions were recorded more than 40 years ago, associations should proceed with the following before September 29, 2025: (1) amend their recorded restrictions, approved by the requisite number of owners to extend and reaffirm the restrictions and other document provisions; and/or (2) file of a “Notice of Claim” to be recorded with the County Register of Deeds, which includes, among other things, a statement preserving the restrictions. Association members do not have to approve the association’s filing of a Notice of Claim.
