Michigan Compiled Laws

Mich. Comp. Laws § 565.391 (2026)

Waiver of mortgage priority; recording; fees.

✓ current as of July 2026

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RECORDING WAIVER OF PRIORITY OF MORTGAGE

Act 236 of 1929

565.391 Waiver of mortgage priority; recording; fees.

Sec. 1.

The holder of a mortgage of property located in this state that is the mortgagee named in the mortgage or a person to whom the mortgage has been properly assigned of record may waive the priority of the mortgage in favor of another lien or mortgage by executing a separate instrument acknowledged in the same manner as required for deeds and other instruments for the transfer of an interest in real estate. The waiver is effective to the extent of the lien of the mortgage waived. Recording of the waiver is constructive notice of the waiver to all persons dealing with the mortgage or with property described in the mortgage from the date the waiver is recorded. A waiver recorded under this section must be recorded in the same manner as are discharges of mortgages, and the register of deeds is entitled to the same fee as is charged for recording a real estate mortgage under section 2567 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2567.

History: 1929, Act 236, Eff. Aug. 28, 1929 ;-- CL 1929, 13360 ;-- CL 1948, 565.391 ;-- Am. 2018, Act 192, Eff. Sept. 18, 2018

Notes of Decisions

Cited in 2 cases, 1978–2016 · leading case: Am. Fed. Sav. & Loan Ass'n v. Orenstein, 265 N.W.2d 111 (Mich. Ct. App. 1978).

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Am. Fed. Sav. & Loan Ass'n v. Orenstein, 265 N.W.2d 111 (Mich. Ct. App. 1978). “MCLA 565.391; MSA 26.701. Even in a case arising prior to the effective date of this statute, the Michigan Supreme Court gave effect to a subordination clause in a recorded mortgage and *258 held that it should be strictly construed against the party who drafted and recorded the…”

Wells Fargo Bank Na Tr. v. Sbc IV Reo LLC (Mich. Ct. App. 2016). · cites it 2× “Subordination of mortgages under the process outlined in MCL 565.391 was not attempted. Several years later, the mortgagors defaulted on the mortgage that had originally been recorded second in time, and foreclosure proceedings were commenced by an assignee traced back to the…”

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