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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6574 March 2, 1989 COLLEGES AND UNIVERSITIES: Conveyances by board of control of state university REAL ESTATE: Affidavits to establish acceptance and control over lands of state university The Board of Control of Michigan Technological University may, subject to conditions, restrictions or other limitations contained in a deed of conveyance, convey lands deeded to the university in the name of the State of Michigan without obtaining prior approval of any other public body. The Board of Control of Michigan Technological University may establish its jurisdiction over specific university lands by means of affidavits of persons familiar with acceptance of the lands and control of the university over the lands, including transcripts of minutes of the board or its predecessors accepting conveyance to particular lands to be recorded in the office of register of deeds in the county where the lands are situated, as provided in MCL 565.451a et seq; MSA 26.731(1a) et seq. Honorable Joseph S. Mack State Senator The Capitol Lansing, MI 48913 On behalf of the Michigan Technological University, you have requested my opinion on two questions relating to the conveyance of real property owned by the State of Michigan under the control and jurisdiction of the university's board of control. Your first question is: "Does the Board of Control of Michigan Technological University have title to and authority to convey those properties originally acquired by the State of Michigan for the purposes of the University and which have been held in the custody, control and management of the Michigan Technological University Board of Control (or its predecessors) for University purposes since acquisition?" The lands, buildings and equipment of Michigan Technological University controlled by its governing body "are public property, owned by the State of Michigan." See Lucking v People, 320 Mich 495, 503; 31 NW2d 707 (1948). They remain by law under the exclusive control and management of the Board of Control of Michigan Technological University, MCL 390.360; MSA 15.1320, subject to any enforceable conditions, restrictions, covenants, or other limitations appearing in the deed conveying title to the state or in the prior chain of title. Title to the properties may have been taken under any of several different names. For example, in addition to naming the "State of Michigan" as grantee, title to lands under the jurisdiction of the board of control may have been acquired in prior names of the institution (Michigan Mining School, 1885 PA 70; Michigan College of Mines, 1897 PA 73; Michigan College of Mining and Technology, 1927 PA 3) or in its current name or in the name of the current board of control or its predecessor boards. The result is the same. As reasoned in Letter opinion of the Attorney General (Rep. Russell Hellman [April 25, 1979]: "The authority of the governing boards of the various state colleges and universities having authority to grant baccalaureate degrees is established by Const 1963, art 8, Secs. 5 and 6. Art 8, Sec. 5, provides that the governing boards of the University of Michigan, Michigan State University and Wayne State University each: " '... shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds....' "Art 8, Sec. 6 confers the same constitutional powers and rights regarding the general supervision of their institutions and expenditure of funds on the governing boards of the other state colleges and universities. Eastern Michigan University v Labor Mediation Board, 384 Mich 561; 184 NW2d 921 (1971). "Each institution and its property is under the exclusive control and management of its governing board.... [Citations omitted]." (1) Cf Regents of the University of Michigan v Michigan, 395 Mich 52; 235 NW2d 1 (1975). The cases cited and quoted in Letter opinion of the Attorney General (Rep. Russell Hellman [April 25, 1979], supra, further "teach that the governing boards of each of these institutions may expend the general funds of their institution in their sole discretion. Only when the legislature appropriates state funds for a special purpose is the college or university required to use the funds for that purpose, if it accepts the appropriation. It, thus, necessarily follows that the college or university may use its general funds, whether derived from private donations, tuition payments, or legislative appropriations to acquire real property and that the conveyance of property to a college or university does not require legislative approval. "As the governing boards also have exclusive management and control of the property of the college or university, the board may likewise dispose of real property by conveyance without legislative approval. In disposing of property, however, the board must comply with any applicable conditions contained in the conveyance of the property to the college or university." (2) It is my opinion, in answer to your first question, that the Board of Control of Michigan Technological University, subject to conditions, restrictions, or other limitations contained in a deed of conveyance conveying lands to the institution or its board of control in the name of the State of Michigan, may convey the same without obtaining prior approval of any other public body. Your second question is: "What action may be taken to establish of record the jurisdiction of the board over lands it or its predecessor acquired for University purposes by deed naming the grantee as the 'State of Michigan'?" The use of only the words "State of Michigan" in naming the grantee of a deed recorded in the office of the register of deeds may raise questions as to which agency of state government has jurisdiction and control over the same, and which agency, if any, has authority to convey the same with or without prior legislative approval. Your question concerns a conveyance of lands made to and accepted by the board of control on August 4, 1943. The deed, recorded in the office of the register of deeds, identifies the grantor as the "Board of Trustees of the Scholarship Loan Fund of the Michigan College of Mining and Technology" and identifies the grantee simply as the "State of Michigan." The lands donated were accepted by a predecessor to the board of control and have, for 45 years, been managed and controlled by the board of control or its predecessors. Subsequent purchasers of the land and parties insuring title thereto may, of course, insist on recordation of instruments establishing of record the board of control's control over and authority to convey the lands. How then may the acquisition of title to and control over the lands by the board of control be established of record? Should the minutes of the board of control made at that time the lands were acquired appropriately record the board's acceptance of the conveyance, the current custodian of the records of the board of control may make and record an affidavit which includes a true transcript of the minutes of that meeting in 1943 at which the board accepted the conveyance. Recordation of such an affidavit is authorized by 1915 PA 123, Sec. 1a et seq, MCL 565.451a et seq; MSA 26.731(1a) et seq, and, if the same conforms with the requirements of the latter act, is prima facie evidence of the facts and circumstances recited therein in any civil cause in any court in this state. The recordation may, therefore, be sufficient to satisfy subsequent purchasers, title examiners and title insurers of the marketability of title and the authority of the board to make the conveyance of the affected property. It is my opinion, in answer to your second question, that the Board of Control of Michigan Technological University may establish its jurisdiction over specific university lands by means of affidavits of persons familiar with acceptance of the lands and control of the university over the lands, including transcripts of minutes of the board or its predecessors accepting conveyance to particular lands to be recorded in the office of register of deeds in the county where the lands are situated, as provided in MCL 565.451a et seq; MSA 26.731(1a) et seq. Frank J. Kelley Attorney General (1)
Section 2(2) of 1885 PA 70, supra, currently provides, in pertinent part, that the Board of Control may
"receive, hold and manage any gift, grant, bequest, or devise of funds or property, real or personal, absolutely or in trust, which will promote the purposes of the institution; ... and lease and dispose of property which comes into the boards possession, if the board does not violate a condition or trust to which the property may be subject. The powers customarily exercised by the governing board of a college or university are vested in the board...."
Section 10 of 1885 PA 70, supra, currently provides:
"The board of control of the Michigan technological university is the successor of the board of control of the Michigan college of mining and technology, and all property held in trust or otherwise by, or in the custody, control or management of the Michigan college of mining and technology, or the board of control of the Michigan college of mining and technology, shall, ... vest in the Michigan technological university or the board of control of the Michigan technological university."
(2)
For example, the Department of Conservation for the State of Michigan conveyed certain lands to the Board of Control of the Michigan College of Mining and Technology for use in conjunction with the institution's Alberta Forestry School. The deed provides that the lands will revert to the state should they cease to be used for the purposes stated. The lands cannot, therefore, be sold or conveyed by the board to a third party. The board is similarly subject to any restrictions, conditions, etc., contained in legislation or, for example, state administrative board resolutions transferring jurisdiction over state-owned lands from another state agency to the board of control.
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