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Trust deeds are alternatives to traditional mortgages in states that allow them. They offer lenders protection to take swift legal action if the home loan defaults. It’s essential to have the correct language in place to serve this document’s intended purpose.
In this article, we examine what to know about drafting and using trust deeds:
What is a Trust Deed?
A trust deed, also known as deeds of trust, is a real estate agreement between a borrower and a lender when transferring a property’s title to a neutral third party for purposes of future ownership. They are usually signed alongside loan documents outlining repayment terms while guaranteeing ownership upon satisfactory repayment. Some states use trust deeds instead of mortgages.
Ordinarily, trust deeds will record the following information:
- Consideration for the home’s purchase
- Amount of money held in trust
- Force of sale rights
- Foreclosure procedures
Also, they can describe the home purchase details and the owner’s intention regarding the trust. For more information, this web page also defines trust deeds.
How do Trust Deeds work?
Trust deeds work by providing a real estate transaction lender with legal protections. Typically, the borrower must sign a promissory note for a trust deed to become effective. Promissory notes are legal contracts signed by the trustor and signify an agreement to repay a home loan while detailing the loan’s terms and conditions .
These are primarily the three parties involved in trust deeds:
- Beneficiaries : Lenders are the beneficiaries. They are beneficiaries since the established trust seeks to protect their interests. Of the three parties, investors or lenders have the most to lose in real estate transactions, and a trust deed provides reassurance.
- Trustees : Third-party trustees hold the property ownership title until the home loan is paid in full. A title insurance company or bank usually fulfills this role. Lenders facilitate this relationship and often have authority over selecting the party. Trustees must stay impartial throughout the transaction.
- Trustors : Borrowers are designated as trustees. They can legally retain this designation as long as they meet the terms and conditions contained within the promissory note. This payment consistency gives them an equitable title, meaning that they claim equity while making loan payments.
The trustee is generally the party that prepares the trust deeds, promissory notes, and other documentation involved in a real estate transaction.
Example of How Trust Deeds Work
More than twenty states require the use of trust deeds versus mortgages. If you live in one of these states, it’s critical to understand the transaction clearly when investing, buying, or selling property. Each state follows various procedures and laws, which means that you should first determine which ones apply to your trust deeds.
Let’s solidify our understanding of how trust deeds work with a concrete example:
- Jack, a prospective borrower, wants to buy a home
- Jack visits his banker to apply for a home loan
- His bank, Horizon Financial, approves Jack
- Horizon Financial drafts a trust deed as a beneficiary
- They also prepare a promissory note to set the terms of the loan
- Horizon Financial names First Title & Trust as the trustee
- Jack agrees to the loan’s terms and signs as the trustor
- Jack repays the loan after 15 years
- Horizon Financial informs First Title & Trust of term completion
- First Title & Trust initiates the trust deed transfer process
- First Title & Trust presents Jack a quitclaim or warranty deed
- First Title & Trust is the grantor during the transfer
- Jack signs the documents as the grantee
- Jack now owns the property outright
All parties must follow the terms of the loan documents explicitly to avoid legal issues. Poorly drafted documents can also create unwanted problems, so it’s a good idea to seek legal advice during the legal drafting phase from a real estate lawyer. They can also give you valuable advice regarding situations they represented in the past to make the process more efficient for you.
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Purpose of a Trust Deed
The purpose of a trust deed is to protect the beneficiary lender if the borrower does not repay the home loan. In the event of default, the trust deed gives the lender authority to resell the home and pay off the debt. Trust deeds also act as a property lien when registered with the county clerk & recorder’s office.
The clerk will notify the lender that they have a record of their security interests on file. If more than one lender funded the home loan, then they receive repayment from a lien based on the order in which it was recorded.
Difference between a Mortgage and Trust Deed
Trust deeds are similar to traditional mortgages, but they are also two very different documents with exclusive legal implications. The most significant differences between a mortgage and trust deed include party designations, default loan terms, redemption rights, availability, contract types, securities backing, cost,
Let’s take a much closer look at each of the differences between mortgages and trust deeds:
Difference 1. Party Designations
Mortgages utilize the terms mortgagors and mortgagees, when referring to lenders and borrowers, respectively. In contrast, trust deeds name three parties, including trustors, trustees, and beneficiaries. Title companies typically serve as trustees, while lenders function as beneficiaries and borrowers as trustors.
Difference 2. Default Loan Terms
Each type of real estate transaction enacts a unique foreclosure procedure. Typically, trust deeds utilize a non-judicial foreclosure process, whereas a mortgage follows a judicial foreclosure process. As such, lenders must obtain a formal court order before they can foreclose on one’s home.
Difference 3. Redemption Rights
If a foreclosure procedure occurs, a property auction is a final step in remedying a defaulted loan. Generally, borrowers have ample opportunity to save the house, but it cannot be repurchased once sold. On the other hand, mortgages recognize a redemption period, which means that borrowers could reclaim their property within several months or years.
Difference 4. Availability
There are more than thirty states that permit the use of trust deeds. Some of these states enable the use of both trust deeds and mortgages. Speak with real estate lawyers in your state to determine which laws apply to your specific situation.
Difference 5. Contracts Types
The types of repayment contracts also differ when it comes to mortgages vs. trust deeds. Trust deeds utilize promissory notes to facilitate the transaction. In contrast, lenders offer mortgage notes to manage it.
Difference 6. Securities Backing
People erroneously refer to all home loans like mortgages. However, a mortgage is only genuine when a mortgage note backs it. Trust deeds are the legal instruments that support a non-mortgage home loan.
Difference 7. Cost
Due to a lender’s responsibility to seek judicial foreclosure, mortgages often utilize more resources than trust deeds. Consequently, mortgagors favor trust deeds in states that permit them. They will always spend less money, time, and attention on trust deeds over mortgages.
Get Help With A Trust Deed
Whether you’re investing in a property or lending to a prospective buyer, it’s critical to get legal help when working with trust deeds. These transactions are significant, and vulnerable parties need to protect their financial interests. Real estate lawyers in your state can offer legal advice and guidance throughout the drafting or negotiating process. Post a project in ContractsCounsel’s marketplace to get free bids from vetted lawyers.
Meet some of our Trust Deed Lawyers
David H. Charlip, the principal of Charlip Law Group, LC, is one of only 101 Board Certified Civil Trial Lawyers in Miami-Dade, with over 38 years of litigation experience. Mr. Charlip is also one of only 136 Florida Civil Law Notaries. He has managed and litigated cases across the country. Mr. Charlip has advised businesses, drafted business formation and purchase and sale documents and litigated business disputes for over 30 years and is very familiar with all aspects of contractual relations.
With over 16 years of experience in the area of estate planning, trademarks, copyrights and contracts, I am currently licensed in Florida and NJ. My expertise includes: counseling clients on intellectual property availability, use and registration; oversee all procedural details of registration and responses with the USPTO/US Copyright Office; negotiate, draft and review corporate contracts and licensing; counsel clients on personal protection, planning and drafting comprehensive estate plans.
Melissa Taylor, the President and founding partner of Maurer Taylor Law, specializes in business contract review and drafting and is a second-generation attorney with private firm, in-house counsel, governmental, entrepreneurial, and solo practitioner experience. Melissa has a strong legal background, a dedication to customer service, is friendly, warm and communicative, and is particularly skilled at explaining complex legal matters in a way that's easy to understand. Melissa personally handles all client matters from start to finish to ensure client satisfaction.
Lawrence A. “Larry” Saichek is an AV rated attorney and a CPA focusing on business and real estate transactions, corporate law and alternative dispute resolution. With a background including five years of public accounting and six years as “in house” counsel to a national real estate investment company, Larry brings a unique perspective to his clients – as attorney, accountant and businessman. Many clients think of Larry as their outside “in house” counsel and a valued member of their team. Larry is also a Florida Supreme Court Certified Mediator and a qualified arbitrator with over 25 years of ADR experience.
Entertainment Attorney with 30+ years of experience, representing all aspects of the TV, Film, Music and Publishing Industries
Aaron focuses his practice on startups and emerging growth companies, providing general counsel services for companies from formation through exit. Aaron frequently advises clients in connection with routine and unique legal, business, and strategic decisions, including corporate, business and technology transactions, angel and venture financings, mergers and acquisitions, protection of intellectual property, and information privacy and data security.
I enjoy helping businesses of all sizes succeed, from start-ups to existing small and medium sized businesses. I regularly advise corporate clients on a variety of legal issues including formation, day to day governance, reviewing and drafting business contracts and other agreements, business acquisitions and sales, as well as commercial and residential real estate issues, including sales, purchases and leases. As an attorney licensed in both Michigan and Florida, I also advise clients on real estate issues affecting businesses and individuals owning real property in either state, whether commercial, residential or vacation/investment property. I also regularly assist nonprofit organizations in obtaining and maintaining tax exempt status, and provide general legal counsel on all matters affecting public charities, private foundations and other nonprofit organizations.