Michigan Marketable Record Title Act
** Update as of May 2024 **
- by Wendy Carman
Before March 29, 2024, OHMHA, on the advice of our attorneys at Pear Eggan & Daniels, P.C., recorded notices of claims of interest with the Washtenaw County Register of Deeds to preserve the existing Building and Use Restrictions for each of our 5 subdivisions. Nothing about the content of these restrictions was changed by the filing of the notices. The notices simply keep them from being extinguished on March 30, 2024, by a recent change in the Michigan Record Title Act (MRTA) that required the liber and page numbers of any restrictions to be discoverable in searches limited to the last 40 years. These notices ensure that our property titles are properly recorded and will be found when needed for property sales, homeowners’ insurance, and mortgage qualifications.
The Building and Use Restrictions for each of the 5 subdivisions describes its methods for enforcing or changing them, and these have not been changed since they were originally recorded. Therefore, the Building and Use Restrictions that were in place for your subdivision when you bought your house, whether you purchased your home in 1962 or last week, remain in place. These documents characterize the nature of your subdivision and its homes and are an essential part of your property titles for real estate purposes. They automatically pass from owner to owner.
If you would like a copy of the Building and Use Restrictions, the Plat, or the newly filed notice that applies to your property, email [email protected], and OHMHA will send you copies.
In addition, there are existing 100-year reciprocal agreements established in the 1980s between OHMHA and the owners of two large developments adjacent to our neighborhood and between selected neighbors and the owners of the Orchard Building at 3055 Plymouth Rd. These agreements limit the development of these properties, restricting the height and placement of structures and requiring open space as benefits to the owners of adjacent homes. Notices of claims of interest in these properties and the restrictions detailed in these agreements have also been filed with the Washtenaw County Register of Deeds to preserve those restrictions and ensure that the liber and page numbers of the agreements can be found in title searches.
A huge thanks goes out to the Committee that worked with me on this project: Jack Cederquist, Jane Klingsten, Pete Mooney, and Brad Pritts. The time and effort to research and accomplish this has been extensive and the legal costs will likely drain our legal fund and much of our reserves.
You could help greatly by
1) paying your dues
2) donating to the legal fund to help us restore our ability to remain vigilant and
3) sharing your views as to whether the Committee should work through the difficult process to change any of the Building and Use Restrictions recorded for your subdivision.
Should you feel this is appropriate, please consider joining our committee to plan and carry out this project.
The Building and Use Restrictions for each of the 5 subdivisions describes its methods for enforcing or changing them, and these have not been changed since they were originally recorded. Therefore, the Building and Use Restrictions that were in place for your subdivision when you bought your house, whether you purchased your home in 1962 or last week, remain in place. These documents characterize the nature of your subdivision and its homes and are an essential part of your property titles for real estate purposes. They automatically pass from owner to owner.
If you would like a copy of the Building and Use Restrictions, the Plat, or the newly filed notice that applies to your property, email [email protected], and OHMHA will send you copies.
In addition, there are existing 100-year reciprocal agreements established in the 1980s between OHMHA and the owners of two large developments adjacent to our neighborhood and between selected neighbors and the owners of the Orchard Building at 3055 Plymouth Rd. These agreements limit the development of these properties, restricting the height and placement of structures and requiring open space as benefits to the owners of adjacent homes. Notices of claims of interest in these properties and the restrictions detailed in these agreements have also been filed with the Washtenaw County Register of Deeds to preserve those restrictions and ensure that the liber and page numbers of the agreements can be found in title searches.
A huge thanks goes out to the Committee that worked with me on this project: Jack Cederquist, Jane Klingsten, Pete Mooney, and Brad Pritts. The time and effort to research and accomplish this has been extensive and the legal costs will likely drain our legal fund and much of our reserves.
You could help greatly by
1) paying your dues
2) donating to the legal fund to help us restore our ability to remain vigilant and
3) sharing your views as to whether the Committee should work through the difficult process to change any of the Building and Use Restrictions recorded for your subdivision.
Should you feel this is appropriate, please consider joining our committee to plan and carry out this project.
EARLIER ARTICLE
Michigan Marketable Record Title Act
** Important Action Being Taken in March 2024 **
- by Wendy Carman
March 2024
Overview
As we notified you in May 2023 (in a notice reproduced at bottom of this page), there has been a change to the Michigan Marketable Record Title Act (MRTA) that may significantly affect the Building and Use Restrictions that came with the purchase of your property. The OHMHA Board formed a subcommittee to consider whether to record notices with the Register of Deeds to preserve existing Building and Use restrictions on properties in our subdivisions. We have done considerable research ourselves and hired attorneys Martin Bodnar and Elle Soros of Pear, Sperling, Eggan & Daniels (PSED) to advise us.
Our attorneys have advised us that we can and should record Notices with the Washtenaw County Register of Deeds by the March 29, 2024, deadline if we want to ensure that any of our restrictions remain in place. Their advice is consistent with what legal firms that specialize in law applying to homeowner associations cite as best practice.
In accordance with this legal advice, the OHMHA Board has voted to file Notices with the Washtenaw County Register of Deeds to maintain our subdivisions' existing restrictions. Filing will ensure that our defined property uses are unchanged, keep our subdivisions residential and provide an opportunity to change them in the future if enough owners want to do that.
If you have comments, questions, or concerns, please contact [email protected].
Summary of our Building and Use Restrictions
When you bought your house, it was sold to you with title records called Building and Use Restrictions, recorded by the Developer with the Washtenaw County Register of Deeds.
These subdivision documents are recorded as “property interests” attached to ownership of our homes. They pass from owner to owner each time a property is sold. They provide notice of any interests held by 3rd parties. Thus, they would be found when a title company searches the county register of deeds records in order to ensure a good title to the property, prior to a purchase.
Our neighborhood association covers 5 different subdivisions, each with slightly different, but similar, sets of restrictions that include rules about the use of the lots, lot size, setbacks, height, size of the house, and fences and out-buildings. In addition, they prohibit or regulate certain activities such as temporary storage, some signs, and the keeping of some animals. None of the 5 documents restrict the ownership or occupancy of any property on the basis of race, color, religion, sex, familial status, or national origin.
As a homeowner in a subdivision that has recorded building and use restrictions, you have both a notice to follow these restrictions and a right, called an interest, to enforce the restrictions attached to any of the homes in your subdivision. Although recorded in the 1960’s when this neighborhood was being developed, they stay in effect by automatically renewing over a set period such as every 10 years, unless enough owners votes to change them, which has not happened yet.
What is the Michigan Title Act
The State originally established the Michigan’s Marketable Record Title Act (MTRA) to simplify and facilitate land title transactions by limiting the required search period to a 40-year history, instead of needing to search back to the original owner. The Act accomplishes this by extinguishing certain interests that arise out of any document that precedes the applicable 40-year period. The Act underwent significant amendments in 2019 and 2022 and the Legislature then provided an opportunity for people benefiting from “older” interests to record a notice of those interests with Register of Deeds.
The purpose of requiring a specific recorded notice is to reduce the uncertainty surrounding the validity of restrictions of record that were created more than 40years ago. If a “Notice of Claim” is not recorded by the deadline, the restrictions of record may be terminated by the intention of the Act.
However, the Legislature allowed a period during which anyone who wanted to preserve older restrictions recorded more than 40 years ago could file a claim of interest to do that. That period ends on March 29, 2024, and there is no planned extension of that deadline.
The intent of the act and its amendments is that restrictions created more than 40 years ago are to be extinguished unless a notice meeting the Act’s requirements is recorded before the deadline. While title companies may continue to search back beyond 40 years, older interests that have not been claimed before the deadline may no longer be enforceable. There has been some controversy over whether associations need to act and the consequences if they do not act for older subdivisions, but there is enough ambiguity for Attorneys around the State to recommend filing the Notices of Claim as best practice to guarantee that the restrictions are preserved.
Our Attorney’s Recommendation.
The OHMHA Board formed a subcommittee to consider whether to record notices with the Register of Deeds to preserve the existing Building and Use restrictions on our properties. We did considerable research ourselves and hired attorneys Martin Bodnar and Elle Soros of Pear, Sperling, Eggan & Daniels (PSED) law to advise us. Our attorneys have advised us that we can and should record Notices of claim of interest with the Washtenaw County Register of Deeds by the March 29, 2024, deadline if we want to ensure that any of our restrictions remain in place. Their advice is consistent with what of legal firms that specialize in law applying to homeowner associations cite as best practice.
The Challenge
As we shared last May, amendments to the Michigan Record Title Act now state that if restrictions were recorded more than 40 years ago, a form must be filed before March 29, 2024, or those restrictions may no longer be enforceable.
The Legislature allowed a period during which anyone who wanted to preserve older restrictions recorded more than 40 years ago could file a claim of interest to do that. That period ends on March 29, 2024, and there is no planned extension of that deadline.
The Legislative purpose of requiring a specific recorded notice was to reduce the uncertainty surrounding the validity of restrictions of record that were created more than 40years ago. If a “Notice of Claim” is not recorded by the deadline, the Act indicates that older restrictions of record will be extinguished by the intention of the Act. However, once the Notice of Claim is recorded the updated Liber and Page locations would allow them to remain.
Filing Notices of Claim
Filing Notices of Claim and recording them with County Register of Deeds, includes a statement preserving the restrictions. At this point this is the most efficient choice of action. Filing and recording the notices would essentially preserve the existing Restrictions by having an up-to-date location in the County record for references to the older documents. It would continue to describe and restrict our neighborhood as residential.
It would not require us to change the way we have been operating for more than 50 years.
We understand that there are some restrictions in these documents, that people might like to change. However, there is a pathway, written into the existing Building and Use Restrictions, to allow changes to your subdivision’s Building and Use Restrictions at a later date by following the rules set forth in the Restrictions.
Filing will ensure that our defined property uses are unchanged, keep our subdivisions residential and provide an opportunity to change them in the future if a majority of owners want to do that.
Choosing not to File Notices of Claim
If we do not file, we will have chosen to ignore best practice legal advice and failed to support stated purposes in our by-laws and articles of incorporation. Failing to file notices of claim could wipe out recorded restrictions and leave them unenforceable, since that is an expressed intent of the Act. This could allow potentially significant or detrimental changes to the neighborhood that homeowners did not knowingly approve. Without these records, the way homes can be sold, insured, and financed may be negatively impacted.
If you have further questions, comments, or concerns, contact [email protected]
_______________________________________________
As we notified you in May 2023 (in a notice reproduced at bottom of this page), there has been a change to the Michigan Marketable Record Title Act (MRTA) that may significantly affect the Building and Use Restrictions that came with the purchase of your property. The OHMHA Board formed a subcommittee to consider whether to record notices with the Register of Deeds to preserve existing Building and Use restrictions on properties in our subdivisions. We have done considerable research ourselves and hired attorneys Martin Bodnar and Elle Soros of Pear, Sperling, Eggan & Daniels (PSED) to advise us.
Our attorneys have advised us that we can and should record Notices with the Washtenaw County Register of Deeds by the March 29, 2024, deadline if we want to ensure that any of our restrictions remain in place. Their advice is consistent with what legal firms that specialize in law applying to homeowner associations cite as best practice.
In accordance with this legal advice, the OHMHA Board has voted to file Notices with the Washtenaw County Register of Deeds to maintain our subdivisions' existing restrictions. Filing will ensure that our defined property uses are unchanged, keep our subdivisions residential and provide an opportunity to change them in the future if enough owners want to do that.
If you have comments, questions, or concerns, please contact [email protected].
Summary of our Building and Use Restrictions
When you bought your house, it was sold to you with title records called Building and Use Restrictions, recorded by the Developer with the Washtenaw County Register of Deeds.
These subdivision documents are recorded as “property interests” attached to ownership of our homes. They pass from owner to owner each time a property is sold. They provide notice of any interests held by 3rd parties. Thus, they would be found when a title company searches the county register of deeds records in order to ensure a good title to the property, prior to a purchase.
Our neighborhood association covers 5 different subdivisions, each with slightly different, but similar, sets of restrictions that include rules about the use of the lots, lot size, setbacks, height, size of the house, and fences and out-buildings. In addition, they prohibit or regulate certain activities such as temporary storage, some signs, and the keeping of some animals. None of the 5 documents restrict the ownership or occupancy of any property on the basis of race, color, religion, sex, familial status, or national origin.
As a homeowner in a subdivision that has recorded building and use restrictions, you have both a notice to follow these restrictions and a right, called an interest, to enforce the restrictions attached to any of the homes in your subdivision. Although recorded in the 1960’s when this neighborhood was being developed, they stay in effect by automatically renewing over a set period such as every 10 years, unless enough owners votes to change them, which has not happened yet.
What is the Michigan Title Act
The State originally established the Michigan’s Marketable Record Title Act (MTRA) to simplify and facilitate land title transactions by limiting the required search period to a 40-year history, instead of needing to search back to the original owner. The Act accomplishes this by extinguishing certain interests that arise out of any document that precedes the applicable 40-year period. The Act underwent significant amendments in 2019 and 2022 and the Legislature then provided an opportunity for people benefiting from “older” interests to record a notice of those interests with Register of Deeds.
The purpose of requiring a specific recorded notice is to reduce the uncertainty surrounding the validity of restrictions of record that were created more than 40years ago. If a “Notice of Claim” is not recorded by the deadline, the restrictions of record may be terminated by the intention of the Act.
However, the Legislature allowed a period during which anyone who wanted to preserve older restrictions recorded more than 40 years ago could file a claim of interest to do that. That period ends on March 29, 2024, and there is no planned extension of that deadline.
The intent of the act and its amendments is that restrictions created more than 40 years ago are to be extinguished unless a notice meeting the Act’s requirements is recorded before the deadline. While title companies may continue to search back beyond 40 years, older interests that have not been claimed before the deadline may no longer be enforceable. There has been some controversy over whether associations need to act and the consequences if they do not act for older subdivisions, but there is enough ambiguity for Attorneys around the State to recommend filing the Notices of Claim as best practice to guarantee that the restrictions are preserved.
Our Attorney’s Recommendation.
The OHMHA Board formed a subcommittee to consider whether to record notices with the Register of Deeds to preserve the existing Building and Use restrictions on our properties. We did considerable research ourselves and hired attorneys Martin Bodnar and Elle Soros of Pear, Sperling, Eggan & Daniels (PSED) law to advise us. Our attorneys have advised us that we can and should record Notices of claim of interest with the Washtenaw County Register of Deeds by the March 29, 2024, deadline if we want to ensure that any of our restrictions remain in place. Their advice is consistent with what of legal firms that specialize in law applying to homeowner associations cite as best practice.
The Challenge
As we shared last May, amendments to the Michigan Record Title Act now state that if restrictions were recorded more than 40 years ago, a form must be filed before March 29, 2024, or those restrictions may no longer be enforceable.
The Legislature allowed a period during which anyone who wanted to preserve older restrictions recorded more than 40 years ago could file a claim of interest to do that. That period ends on March 29, 2024, and there is no planned extension of that deadline.
The Legislative purpose of requiring a specific recorded notice was to reduce the uncertainty surrounding the validity of restrictions of record that were created more than 40years ago. If a “Notice of Claim” is not recorded by the deadline, the Act indicates that older restrictions of record will be extinguished by the intention of the Act. However, once the Notice of Claim is recorded the updated Liber and Page locations would allow them to remain.
Filing Notices of Claim
Filing Notices of Claim and recording them with County Register of Deeds, includes a statement preserving the restrictions. At this point this is the most efficient choice of action. Filing and recording the notices would essentially preserve the existing Restrictions by having an up-to-date location in the County record for references to the older documents. It would continue to describe and restrict our neighborhood as residential.
It would not require us to change the way we have been operating for more than 50 years.
We understand that there are some restrictions in these documents, that people might like to change. However, there is a pathway, written into the existing Building and Use Restrictions, to allow changes to your subdivision’s Building and Use Restrictions at a later date by following the rules set forth in the Restrictions.
Filing will ensure that our defined property uses are unchanged, keep our subdivisions residential and provide an opportunity to change them in the future if a majority of owners want to do that.
Choosing not to File Notices of Claim
If we do not file, we will have chosen to ignore best practice legal advice and failed to support stated purposes in our by-laws and articles of incorporation. Failing to file notices of claim could wipe out recorded restrictions and leave them unenforceable, since that is an expressed intent of the Act. This could allow potentially significant or detrimental changes to the neighborhood that homeowners did not knowingly approve. Without these records, the way homes can be sold, insured, and financed may be negatively impacted.
If you have further questions, comments, or concerns, contact [email protected]
_______________________________________________
|
|
FOR REFERENCE:
Below is the information provided to residents in May 2023
as an insert to the printed OHMHA newsletter
The Michigan Marketable Record Title Act and How the 2018 Amendment May Affect You
The Orchard Hills-Maplewood subdivisions has real estate documents regarding our subdivisions that the developers publicly recorded when they were built. A key part describes and preserves our properties and neighborhoods as residential, important to home sales and for mortgage approvals, and if upcoming zoning changes broaden the allowed uses of our properties. In addition, some properties next to our subdivision have documented agreements for buffers and allowed uses to avoid negative impacts from them. Terms or conditions passed along with the property such as these, are often called covenants, deed restrictions, or easements, and are publicly recorded in a Register of Deeds.
In 2018, the Marketable Record Title Act reduced the required span of title searches in public records to 40 years, used to determine if and how a property can be used or sold.
Since our subdivision documents are nearing 40 years or older, legal notices of a claim of interest need to be filed before March 29, 2024 so that references to the older documents will appear in 40-year title searches. If the deadline is not met, then conditions contained in them may be extinguished. We have been informally advised and have reviewed published articles that suggest notices need to be filed either by individual owners or possibly by the Association. The board is studying this matter.
For questions or feedback or if you'd like to join the subcommittee currently reviewing this, please contact Wendy Carman at [email protected].