Ask any Minnesota real estate lawyer what the Marketable Title Act does and you get the 40-year rule back. Ancient interests die if nobody records a notice within 40 years; ancient records shall not fetter the marketability of real estate. That is right, it is on the face of subdivisions 1 and 5 of Minn. Stat. § 541.023, and it almost never decides a file.
What decides files is the other half — the categories the act does not reach, the people it cannot be used against, and whether the party invoking it qualifies to. A title examiner who treats § 541.023 as a broom will be wrong about a large share of Minnesota land, including, since 2001, every acre of it that is registered.
Is the Marketable Title Act a rule of title, or a defense?
It is a defense, and only a party who satisfies its own entry requirements can raise it. The framing decision is Wichelman v. Messner, 250 Minn. 88, 83 N.W.2d 800 (1957), later described by the court as “our most comprehensive decision addressing the MTA,” Hersh Properties, LLC v. McDonald’s Corp., 588 N.W.2d 728, 735 (Minn. 1999):
The Marketable Title Act is a comprehensive plan for reform in conveyancing procedures and encompasses within its provisions the collective sanctions of (a) a curative act, (b) a recording act, and (c) a statute of limitations.
Wichelman, 250 Minn. at 106. Then, at 112, the court set out the gate:
For § 541.023 to operate in a particular case to extinguish any interest, two basic requirements are necessary. First, the party desiring to invoke the statute for his own benefit must have a requisite “claim of title based upon a source of title, which source has then been of record at least 40 years,” (i. e., a recorded fee simple title). Secondly, the person against whom the act is invoked must be one who is “conclusively presumed to have abandoned all right, claim, interest * * *” in the property (subd. 5).
Two consequences get missed.
A holder of less than a fee cannot invoke the act. The “source of title” must be “recorded fee simple ownership, an estate which under § 500.02 may be ‘defeasible or conditional.’” Id. at 106. A lessee, a life tenant, an easement holder does not hold the thing the statute protects.
And the act does not manufacture title out of a bad deed. Wichelman rejected the argument that a stranger’s conveyance could serve as a root: “We do not think the statute lends itself to an interpretation to the effect that title may be founded on a stray, accidental, or interloping conveyance.” Id. at 112.
The legislature then wrote that answer into the statute. Subdivision 7 defines “source of title” to include an instrument that “purports to transfer or confirm, a fee simple title” even “from a person who was not the record owner” — but only if, during the 40 years after recording, two things happened: “(1) another instrument was recorded which purports to transfer a fee simple title from said grantee or transferee to another person and (2) no instrument was recorded which purports to be or confirm a transfer of any interest in the real estate by or from whoever was the record owner in fee simple immediately before the commencement of said period of 40 years.” The subdivision states its own object: “The purpose of the next preceding sentence is to limit the effect of erroneous descriptions or accidental conveyances.”
That is the wild-deed rule, and it is conjunctive. One recorded instrument from the true record owner inside the 40 years and the stray deed is not a root of title.
Does § 541.023 apply to Torrens property?
No — not since 2001, and the history runs the opposite direction from what most practitioners assume.
In 1999 the supreme court held that it did. Hersh Properties involved a 1950 ingress-egress and signage easement recited on the certificates of title to two adjacent Torrens parcels in Minneapolis. McDonald’s, which was using the paved easement area as a parking lot, argued the MTA had extinguished it because nobody in the benefited chain had filed the sworn notice. The court held “the plain language of the MTA leads us to hold that the MTA applies to property registered pursuant to the Torrens Act,” 588 N.W.2d at 735 — subdivision 1 says “any real estate” and expressly contemplates filing with the registrar of titles.
The easement survived anyway, on a narrower ground: for Torrens property, “the source of title held by an owner of Torrens property is the certificate of title issued to that owner upon his or her acquisition of fee simple title,” id. at 737 — and McDonald’s certificate dated from 1984. Too young.
Two years later the legislature closed the door. 2001 Minn. Laws ch. 50, § 33 added subdivision 2a, captioned “REGISTERED PROPERTY NOT AFFECTED”; the chapter’s own title describes the act as “exempting registered/torrens land from the 40 year law.” The current text:
(a) Except as provided in paragraph (b), this section does not apply to real property while it remains registered according to chapter 508 or 508A.
Paragraph (b) preserves a narrow transitional class: actions pending on August 1, 2001 or commenced before February 1, 2002, with a notice of pendency filed with the registrar before February 1, 2002. Those dates are dead letters. Paragraph (a) is the rule, and it is categorical.
So the first question in any § 541.023 analysis is not “how old is the instrument.” It is “abstract or Torrens.” If the property is registered, the act is off the table and the analysis moves to the Torrens statutes. The same threshold governs adverse possession, by a different statute: § 508.02 bars adverse possession on registered land while preserving boundary by practical location.
Who is the act’s exception list, exactly?
Subdivision 6 is the survivors’ list, and it is short enough to read in full. Check it before telling a client an old interest is gone:
This section shall not affect any rights of the federal government; nor increase the effect as notice, actual or constructive, of any instrument now of record; nor bar the rights of any person, partnership, state agency or department, or corporation in possession of real estate. This section shall not impair the record title or record interest, or title obtained by or through any congressional or legislative grant, of any railroad corporation or other public service corporation or any trustee or receiver thereof or of any educational or religious corporation in any real estate by reason of any failure to record further evidence of such title or interest even though the record thereof is now or hereafter more than 40 years old; nor shall this section require the recording of any notice as provided for in this section as to any undischarged mortgage or deed of trust executed by any such corporation or any trustee or receiver thereof or to any claim or action founded upon any such undischarged mortgage or deed of trust.
Six survivors in one paragraph: the federal government; persons in possession; railroad corporations; other public service corporations and their trustees or receivers; educational corporations; religious corporations — plus a carve-out for undischarged mortgages and deeds of trust executed by any of those corporate entities.
Then the subdivision takes two things back from the corporate exceptions:
The exceptions of this subdivision shall not include (1) reservations or exceptions of land for right-of-way or other railroad purposes contained in deeds of conveyance made by a railroad company or by trustees or receivers thereof, unless said reserved or excepted land shall have been put to railroad use within 40 years after the date of said deeds of conveyance, (2) nor any rights under any conditions subsequent or restrictions contained in any such deeds of conveyance.
That is the abandoned-rail-corridor rule. A railroad reservation in an old deed is not protected unless the reserved land was actually put to railroad use within 40 years of the deed — nor are the conditions and restrictions in those deeds.
Why does possession beat the 40-year bar?
Because the act’s premise is record notice, and possession is the substitute for it. Wichelman identified three classes against whom the statute cannot be invoked: those enforcing an interest founded on an instrument or event less than 40 years old; those who filed the required notice within the 40 years; and “those excepted by subd. 6 of the act, which includes persons in possession.” 250 Minn. at 112.
But “possession” has a real threshold. In Township of Sterling v. Griffin, 309 Minn. 230, 244 N.W.2d 129 (1976), a township sued to enjoin landowners from interfering with a town road legally established in 1889 and never abandoned under ordinary road-abandonment law. It was extinguished anyway — no recorded notice, and the trial court found the township was not in possession. The supreme court affirmed, applying the standard from B. W. & Leo Harris Co. v. City of Hastings, 240 Minn. 44, 49 (1953):
* * * it [possession] must be present, actual, open, and exclusive and must be inconsistent with the title of the person who is protected by this section. It cannot be equivocal or ambiguous but must be of a character which would put a prudent person on inquiry.
Sterling, 309 Minn. at 236. The town had never built or maintained a road on the strip; road checks and the snowplow stopped short of it; the segment dead-ended. The court held “appellant’s possession of the town road was not sufficient to put a prudent person on inquiry and therefore its interest in the respondents’ property is barred.” Id. at 238.
Occasional use is not possession, and a public entity gets no discount.
Do restrictive covenants die at 40 years under this statute?
No. Private covenants run on a 30-year clock in a different statute, and § 541.023 expressly steps aside for the covenants that statute does not reach.
Subdivision 2(c): “This section does not apply to actions to enforce rights, claims, interests, encumbrances, or liens arising out of private covenants, conditions, or restrictions to which section 500.20, subdivision 2a, or successor statutes do not apply.”
Minn. Stat. § 500.20, subd. 2a supplies the general rule: private covenants, conditions, or restrictions “cease to be valid and operative 30 years after the date of the deed, or other instrument, or the date of the probate of the will, creating them, and may be disregarded” — excepting rights of reentry or repossession under subdivision 3. It then lists eight classes it does not apply to, among them covenants preserved by a recorded notice; condominium documents under ch. 515, 515A or 515B; cooperative documents under ch. 308A; common interest community declarations under ch. 515B; and government-required affordable-housing declarations.
Read the two together. Covenants inside § 500.20, subd. 2a expire at 30 years under that statute. Covenants outside it — a condominium or CIC declaration — are exempt from § 500.20’s cut-off and from the MTA by subdivision 2(c). They expire on neither clock. Anyone who assumed a 1960s CIC-style declaration was swept away by the MTA has it backwards; assessment and enforcement under chapter 515B is its own regime.
One drafting trap goes with this. To preserve a condition subsequent or restriction by recording a § 541.023 notice, subdivision 1 requires more than the standard content: the notice “shall affirmatively show why such condition or restriction is not, or has not become nominal so that it may be disregarded under the provisions of section 500.20, subdivision 1.” A notice that omits that showing has not done the job.
What else does the statute quietly not do?
It never lengthens a limitations period. Subdivision 3: “This section does not extend the right to commence any action beyond the date at which such right would be extinguished by any other statute.” See the civil limitations map.
It reaches repurchase options on their own terms. Subdivision 2(b) applies the section to “repurchase options or other rights of repurchase that encumber an interest in land based upon an instrument other than a deed of conveyance granted by a governmental body, agency, or subdivision,” unless a notice is recorded within 40 years of the recording of the instrument — and adds that the paragraph “does not revive repurchase options or rights of repurchase barred by subdivision 1.”
And the notice is cheap to record. Subdivision 4 directs county recorders to accept conforming notices at fees “corresponding with the fees charged for recording notices of lis pendens of similar length.” If a client holds a valuable old interest — a reversion, a mineral reservation, an unused easement across a neighbor’s land — the fix is a recorded notice, not litigation.
The practical order of operations
- Abstract or Torrens? If registered, subdivision 2a ends the inquiry.
- Does the party invoking the act hold a recorded fee simple whose source has been of record 40 years? If not, Wichelman’s first requirement fails.
- If the root is a wild deed, run subdivision 7’s two conditions. Both, or it is not a source of title.
- Run subdivision 6 against the claimant — then the two take-backs in clauses (1) and (2).
- If the interest is a covenant, go to § 500.20, subd. 2a first and check its eight carve-outs.
- Check whether another statute killed the claim earlier. Subdivision 3 means the MTA cannot save it.
The observation
The Marketable Title Act was written to make title examination finite, and the mechanism was not a clean sweep. It was a bargain: record a notice, keep your interest; stay in possession, keep it without recording; belong to one of six protected classes, keep it regardless.
That is why the 40-year rule is the least useful thing to know about § 541.023. It tells you what happens in the ordinary case. The exceptions tell you which case you are in — and in Minnesota the answer is very often “one of the exceptions.”
Madgett Law, LLC handles Minnesota title and real property disputes — marketable title and § 541.023 questions, easement and right-of-way claims, boundary and adverse possession litigation, and proceedings involving registered land. Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 541.023 (Minnesota Office of the Revisor of Statutes), specifically subd. 1 (40-year bar; contents of the recorded notice; the requirement that a notice as to a condition subsequent or restriction “affirmatively show why such condition or restriction is not, or has not become nominal” under § 500.20, subd. 1); subd. 2(a) (application to every right, claim, interest, incumbrance or lien at least 40 years old); subd. 2(b) (repurchase options and rights of repurchase; no revival of options already barred); subd. 2(c) (section does not apply to private covenants, conditions, or restrictions to which § 500.20, subd. 2a does not apply); subd. 2a(a)–(b) (registered property not affected; the August 1, 2001 / February 1, 2002 transitional class); subd. 3 (section does not extend a right beyond the date another statute would extinguish it); subd. 4 (recorders to accept notices; fees corresponding to lis pendens; discharge in the same manner); subd. 5 (conclusive presumption of abandonment; “ancient records shall not fetter the marketability of real estate”); subd. 6 (exceptions: federal government; effect as notice; persons, partnerships, state agencies or departments, and corporations in possession; railroad, other public service, educational and religious corporations; undischarged mortgages and deeds of trust of such corporations; and the two take-backs at clauses (1) and (2) for railroad right-of-way reservations and for conditions subsequent or restrictions in such deeds); subd. 7 (definition of “source of title”; the two conditions governing an instrument from a person who was not the record owner; the stated purpose of limiting the effect of erroneous descriptions or accidental conveyances). Minn. Stat. § 500.20, subd. 2a (private covenants, conditions and restrictions cease to be valid and operative 30 years after the creating instrument, subject to eight enumerated classes to which the subdivision does not apply) and subd. 1 (nominal conditions and limitations). Session law: 2001 Minn. Laws ch. 50, § 33 (adding § 541.023, subd. 2a, “REGISTERED PROPERTY NOT AFFECTED”), the chapter’s title describing the act as “exempting registered/torrens land from the 40 year law.” Case authority, verified from the Caselaw Access Project archive: Wichelman v. Messner, 250 Minn. 88, 83 N.W.2d 800 (1957), at 250 Minn. 106 (the act as curative act, recording act, and statute of limitations; “source of title” as recorded fee simple ownership under § 500.02) and 250 Minn. 112 (the two basic requirements for the act to operate; the three classes against whom it cannot be invoked, including persons in possession; rejection of title founded on a “stray, accidental, or interloping conveyance”); reversed at 250 Minn. 121. Hersh Properties, LLC v. McDonald’s Corp., 588 N.W.2d 728 (Minn. 1999), at 735 (holding the MTA applicable to Torrens property under the pre-2001 statute) and 737 (source of title for a Torrens owner is the certificate of title issued on acquisition of fee simple title); affirmed in part and reversed in part. Township of Sterling v. Griffin, 309 Minn. 230, 244 N.W.2d 129 (1976), at 309 Minn. 236 (possession standard, quoting B. W. & Leo Harris Co. v. City of Hastings, 240 Minn. 44, 49 (1953)) and 309 Minn. 238 (holding the township’s possession insufficient to put a prudent person on inquiry). Whether particular property is registered, whether a given course of use amounts to possession under subdivision 6, and whether a particular instrument qualifies as a source of title are fact questions this article does not resolve. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. No outcome is promised or implied.