Michigan community associations and their attorneys are concerned about potential unintended consequences from Public Act 572, which amended Michigan’s Record Marketable Title Act. While it is not entirely clear, many community association attorneys are of the opinion that the language might be interpreted to cause some community associations’ recorded restrictions to expire if they were recorded over 40 years ago and no additional claim of interest is recorded to essentially “renew” the restrictions.
Subsequently, HB 5611 was signed into law, extending the deadline before which associations over 40 years old can record a claim of interest from March 29, 2021 to March 29, 2024. This essentially kicked the can down the road.
In December 2022, HB 6370 was signed into law, which included the following:
“This Act must not be applied to do any of the following… (e) Bar or extinguish any land or resource use restriction, including any of the following…”
Community association documents are not specifically listed after that, but we might reasonably conclude they would be included in “any land or resource use restriction”. Also, it seems that easements may be protected by other language in the bill. That said, the language could certainly be clearer. Certainly, a restriction of, for example, residential use only and things like set back lines and no outbuildings would be “land use restrictions”, but we are not sure that things like requirements to pay assessments would be considered “land use restrictions” by our courts.
Unfortunately, the community association industry must still seek clarity on this issue from our legislators. We will also seek individually, and perhaps through United Condominium Owners of Michigan, to have this statute clarified. But if you were to have entirely new amended and restated documents recorded, you would not have to worry about the above issue at all. So, if you’ve been on the fence, this is another good reason to consider restatement. Contact us if you would like an estimate.