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February 2021
 
 
Lame Duck Session Actions Affecting Real Estate

Capitol

Gregory J. Gamalski, Bodman PLC

Several bills affecting real estate law and practice were signed by Governor Whitmer in the last days of 2020. Of particular interest were (a) an extension of the deadline set forth in the Marketable Title Act deferring the effective date of the prior Act 572 of 2018 to March 29, 2024; (b) extension of remote notarization and witnessing through June, 2021; and (c) a renewal of the dormant Michigan historic tax credit through 2031.

Marketable Title Act

The Marketable Title Act, MCL 565.103 was amended by Public Act 572 of 2018 to make it easier to eliminate ancient but often practically ignored use restrictions.  A key  component of Act 572 was that interests, claims, or charges could be preserved and kept effective by filing an affidavit before March 29, 2021.  Act 572 was the subject of considerable discussion, and an ad hoc RPLS committee submitted a revision proposal, but the legislative session ended before any action was taken. In the interim, at the urging of a number of interested stakeholders, Public Act 294 of 2020 passed extending the deadline to March 29, 2024.  It is expected that the section’s earlier proposal will be reintroduced during the new legislative session.

Remote Notarization and Witnessing 

In response to the COVID-19 epidemic, various executive orders and statutes addressed remote notarization and witnessing of real estate and estate planning documents. The Probate and Estate Planning Section and Elder Law Section of the State Bar took significant leads in the effort.  In response, Public Acts 335, 336, 337, and 338 were passed at the end of the session, and remote witnessing and remote notarization are now authorized through the end of June 2021.

Historic Tax Credit

Finally, Michigan’s former historic tax credit, which lapsed in 2012, was reauthorized by Public Act 343 of 2020 adding a state tax credit for eligible historic rehabilitation projects.

 
 
 
 
Temporary (?) Extension of Audio-Visual Notarization

Notary

Michael A. Luberto, Chirco Title Agency, Inc.

Among the laws passed in December 2020 was PA 336 of 2020 which gives options for notarizing real estate documents during the COVID-19 pandemic.

The law extends until July 1, 2021 the commission of Michigan notaries that expired after March 1, 2020 and before June 30, 2021.

PA 336 authorizes using audio-visual notarization (“AVN”) through June 30, 2021.  With AVN, the signer has paper copies of the documents to be notarized and signs them in front of a Michigan notary using two-way, real-time audiovisual technology (“2WRTAVT”—we have all used this technology the last several months!)

AVN is different from remote online notarization (“RON”) and in-person electronic notarization (“IPEN”).  RON involves the signer and notary electronically signing digital records, in a virtual closing room, using one of the platforms approved by the Michigan Secretary of State.  IPEN is the same as RON, except the signer and notary are physically together, using the same device.

Requirements for the use of AVN include:

  • The 2WRTAVT must allow for direct interaction between the signer and notary, simultaneously by sight and sound.
  • The audio-visual signing must be recorded and retained.
  • The signer must present identification to the notary during the signing.
  • The signer must be physically located in Michigan. If not, the documents must be intended for filing with a Michigan governmental entity or involve Michigan property.
  • If the signer is outside of Michigan, the notary must not have actual knowledge that the signing is prohibited by the jurisdiction where the signer is located.
  • The signer must send the executed documents to the notary on the day of signing.
  • The documents must be notarized upon receipt.

The date of the notarization is the date the documents were signed using 2WRTAVT.

It is possible that AVN may be extended beyond June 30, 2021.

Practice note: Title insurance underwriters have issued bulletins with their requirements and limitations on the use of AVN, such as using AVN for only certain transactions and the authorization of various 2WRTAVT platforms. Check with your title company to be sure you are following their procedures.

 
 
 
 
 
Legislative Report

View the report

 
 
 
 

Register Now

Construction Special Committee Presents . . . Ask the Expert!

Date: Tuesday, February 23, 2021
Time: 4-5 p.m.

The meeting will take place via Zoom.
Register Now
 
Experts: 
Ronald A. Deneweth, Deneweth, Dugan & Parfitt
Kevin S. Hendrick, Clark Hill
Stephen A. Hilger, Hilger Hammond
Thomas M. Keranen, Clark Hill

 

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Join a Committee

Take the opportunity to get involved by writing for one of our publications, presenting at a conference or seminar, or joining one of the committees that cover virtually every area in real estate law. See our committees and how you can join or see the committees you're already subscribed to.

Note to Committee Members:
Communication settings for RPLS Special Committee members have been changed to "Daily Digest." This means when a message is posted on your Committee page, you will receive the message the day after it is posted.

 
 
 
 
 
Write an Article

Interested in writing an article for the e-Newsletter? Please contact co-editors Glen Zatz at gzatz@bodmanlaw.com, Samuel Kilberg at SKilberg@dykema.com, or Patricia Paruch at pat.paruch50@gmail.com.