“Subject to restrictions of record” no longer preserves anything in Michigan
“Subject to restrictions of record” no longer preserves anything in Michigan
2026-09-12 · Michigan · Compliance
What happened. The Michigan Legislature added section 5a to the Marketable Record Title Act on 29 September 2025, and it disposes of a habit that has been quietly failing to protect Michigan covenants for years.1
The provision says two things. An instrument that references an interest “for the sole purpose of limiting the warranty” is not an effective notice of claim. And — retroactive to instruments recorded after 28 March 2019 — a deed reciting “subject to easements and restrictions of record” or similar language, without a liber and page or other county-assigned identifier, “is not effective to create, preserve, or continue any recorded easements or restrictions of record.”
Why this recital was ever thought to work
The Marketable Record Title Act extinguishes old interests in land that are not carried forward in the chain of title. The traditional way an interest stays alive is that something in the chain refers to it. Conveyancers took — and take — the “subject to restrictions of record” clause to be that reference, and drop it into warranty deeds as a matter of routine.
It was never doing that job. The clause exists to limit the grantor's warranty of title: it tells the buyer the seller is not warranting against whatever restrictions happen to be recorded. It identifies nothing. Section 5a says so in terms, and applies the rule back seven years.
What is now required instead
A specific identifier. The liber and page of the recorded declaration, or another identifier the county has assigned to it. A reference that a title examiner can follow to a document, rather than a general acknowledgement that documents exist.
Which Michigan associations this reaches
Not most of them, and the reason matters. The same act permanently exempted condominium master deeds and every HOA instrument recorded on or after 1 January 1950. For those associations the preservation question is moot, so the quality of a deed recital is irrelevant to whether their covenants survive.
Section 5a bites where preservation is still live — principally the pre-1950 declarations facing the 29 September 2027 notice deadline — and it bites hard, because a board in that position may have believed the routine deed language in every conveyance since 2019 was quietly doing the work.
It was not. And the retroactivity means the association cannot point to a 2021 or 2023 sale as having preserved anything.
The second audience: title and resale practice
The provision also reaches how an association describes its own restrictions in the documents it produces. Michigan associations issue status letters, resale disclosures and payoff statements constantly, and a fair number of them describe the governing documents generically.
Three practices worth changing:
- Put the liber and page in the association's own recorded instruments. Amendments, notices, lien claims and assignments that reference the declaration should identify it, not gesture at it.
- Put it in resale and status letters too. Not because section 5a requires it — it does not — but because the letter is often the document a purchaser's counsel relies on, and a specific citation is what makes the restrictions findable.
- Stop treating the grantor's deed as part of the association's compliance chain. The association does not control what a seller's lawyer writes, and after section 5a it gets nothing from it.
The penalty provision that survived the rewrite
Section 8 keeps the slander-of-title remedy: a court finding that a claim was filed “solely for the purpose of slandering the title to land” shall award the plaintiff all costs, attorney fees as allowed, and all damages. That is worth reading alongside section 5a, because the natural response to a preservation worry is to record something, and recording a notice of claim over land the association has no interest in is not a costless hedge.
What to watch next
Whether Michigan title underwriters issue revised requirements for pre-1950 subdivisions. The retroactive reach to 2019 means a title company reviewing a 2022 conveyance can no longer treat the recital as curative, and underwriting guidance usually moves faster than case law on a question this mechanical.
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