Trust Deed Review

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A trust deed review is a careful analysis of an agreement between a lender and a borrower to transfer property ownership to a responsible third party. The trustee keeps the property until the borrower pays back the debt. Unless the Deed of Trust provides otherwise, the borrower retains actual or equitable title to the property during the repayment period and is still fully responsible for the property. But the property's legal ownership is in the trustee.

It's simple to ignore the value of the trust deed because so many companies use trusts to run their operations for asset protection and tax planning reasons. Every practitioner and accountant should always keep the trust deed's provisions and conditions top of mind. The trust deed should be examined for things like:

  • Has the deed's stamp duty been paid?
  • Who is the trustee, exactly?
  • Who is the guardian/appointor?
  • What happens when these roles are switched out?
  • Who are the recipients?
  • Are they the same for capital and income distributions?
  • Does the trustee have the authority to carry out the proposed transaction?
  • When does the trust end?
  • Is the distribution of capital and revenue up to discretion or governed by predefined classes?
  • Has a definition of income under Section 95 been accepted for the Deed?

While the terms of the deed primarily govern the operation of the trust, the trust is a creature of equity and is subject to the rules of equity and the Trustee Act; as such, we recommend that an experienced solicitor review any transaction or deal with the trust or its assets.

What Is a Trust Deed?

When financing the purchase of a home, you will either sign a mortgage or a deed of trust—but not both. A deed of trust is only available in a few states, but a mortgage is available in all 50. An official document that safeguards a real estate transaction is a trust deed. While it performs similarly to a mortgage, it is not the same. In essence, it provides that until you have paid off your debt in line with the terms of your loan, a chosen third party retains legal title to your property. Like mortgages, deeds of trust are public records.

How Does a Trust Deed Work?

If you don't repay your debt as arranged, the lender will still have some recourse thanks to the deed of trust. The trustor, beneficiary, and trustee are the three people involved in a deed of trust. In a deed of trust for a real estate transaction, there are three parties:

  • Trustor: This is sometimes referred to as the borrower and is the individual whose assets are held in the trust (i.e., you). Until the debt is repaid, the trust will have title to your house. However, so long as you continue making loan payments by the conditions provided in the deed of trust, you continue to be the legal owner. In other words, even if you don't have the formal title, you get to benefit from being a homeowner in every way, including having the freedom to live there and building equity.
  • Beneficiary: The party whose investment interest is being preserved is the beneficiary. Typically, that would be the lender, but it might also be someone with whom you have a contract.
  • Trustee: While you are repaying the loan, the trustee owns the official title to the property. Title firms are frequently, but not always, trustees. The trustee must dissolve the trust and transmit the title to you once you have paid off your debt.
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What Is Included in a Deed of Trust?

Much of the information you would find in your mortgage is also included in a deed of trust, including important information about your home, the loan, and associated terms and conditions.

Typically, a deed of trust will include the following provisions:

  • Name of the parties
  • The initial loan amount and terms of repayment
  • A description of the property in legal terms
  • The loan's commencement and maturity dates
  • Fees
  • Several terms, including alienation and acceleration clauses
  • Any riders to the provisions mentioned above

What to Look for When Reviewing a Contract

Starting with a strategy can help ensure that the most crucial parts of the contract have been thoroughly examined while performing a contract review. You shouldn't proceed with the contract if any mistakes or inconsistencies are found, or any queries come up as a consequence of the contract review until all problems have been satisfactorily fixed. Here are some of the most important criteria to consider while reviewing contracts.

  1. Terms and Clauses

    Every word in a contract is crucial and has to be carefully examined, but certain phrases and conditions are unquestionably more vital than others. The most crucial contract conditions are likely to vary as every business and sector is unique, but a handful should be carefully scrutinized in every case. Important contract clauses, including those relating to confidentiality, indemnity, termination, and dispute resolution, are worth carefully analyzing to ensure appropriate language.

  2. Termination and Renewal

    You should ensure you fully grasp the contract's termination and renewal provisions before signing any legally binding agreement to prevent being shackled to it for longer than you intended. You should check on items like automatic renewal wording and opt-out windows to know how and when to terminate the agreement and the consequences of not telling the other party by a specific date.

    This is also a good time to start planning for the future so that you won't be unprepared for critical dates and deadlines. Schedule calendar reminders to ensure that you and your team don't miss opportunities to renegotiate or cancel the agreement within the specified boundaries.

  3. Language

    Please pay special attention to how each sentence is written when you read a contract and scan it for any terminology that could be open to interpretation. Even if both parties read ambiguous wording in the same manner, it's preferable to clarify the language to avoid misunderstandings once the contract is signed and put into effect. Please make sure all conditions are clearly stated in the contract since significant disagreements may need a third party to decide the appropriate course of action based on how they interpret the agreement.

  4. No Blank Spaces

    Utilizing contract templates can help you save time when creating contracts, but the contract review process calls for extra care. Before the final contract is signed, all blanks should be filled in or eliminated. Depending on the situation, leaving a blank in your agreement might have significant repercussions for your company.

  5. Default Terms

    While most contracts are entered into with good intentions on all sides, there is always a chance that one party won't fulfill their end of the bargain, which would constitute a breach of contract. Watch out for default provisions, so you are aware of the potential repercussions of failing to complete your responsibilities or the solutions accessible to you if you are the party who is not in violation.

  6. Dates and Deadlines

    During the contract review step, in addition to making sure that all of the due dates and deliverables are consistent with any prior oral agreements, you may begin keeping track of everything your team or organization is in charge of carrying out. By being proactive, you may lessen the likelihood of a contract violation, which might have serious repercussions for your company.

Conclusion

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