Bulletin: MI2019002

Dear Associates:

On December 28, 2018, the Governor signed in to law Public Act 572 of 2018 (attached) which law acts to repeal parts of MCL 565.101 et seq. entitled Marketable Record Title Act. The effective date of these changes is March 29, 2019.

The change made by Public Act 572 is the creation of a new provision: Section 2 (2). This provision requires that to preserve a restriction (called a "divestment") past the limitations imposed by the Marketable Record Title Act (20 years for mineral interests and 40 years for all other title matters) a party must record an instrument which purports to preserve the restriction, and which meets the requirements of Section 5. The Section 5 (MCL 565.105) requirements include, among other items: the liber and page (or other county-assigned unique identifying number) of the recorded instrument creating the restriction, the claimant's name, mailing address, interest claimed to be preserved, legal description and claimant's signature, etc.

The goal of this requirement is to remove an argument that the mere reference in a deed that the conveyance is subject to “easements and restrictions of record if any” acts to create a fresh clock and a “restart” of the 40-year limitation on the restriction.

It is important to note that the Act does not bar or extinguish an easement (or interest in the nature of an easement) the existence of which is clearly observable by physical evidence of its use [see MCL 565.104 (1) (c)]. Nor does the Act affect any oil and gas lease or other severed interest in oil and gas, a storage agreement or subsurface storage formations. (This is addressed by the Dormant Minerals Act.)

As a practical matter, the amendments to the Marketable Record Title Act don’t act to change our examination or underwriting practices. If a search of the property record reveals a restriction on the property (whether it is more than 40 years old or not) we will continue our practice to show the restriction. To remove, or insure over a restriction, please contact the Stewart Underwriting Department for approval. 

Please advise all appropriate personnel of the above-identified information.  

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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