Deed of trust (real estate)

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A deed of trust refers to a type of legal instrument which is used to create a security interest in real property and real estate. In a deed of trust, a person who wishes to borrow money conveys legal title in real property to a trustee, who holds the property as security for a loan (debt) from the lender to the borrower. The equitable title remains with the borrower. [1] The borrower is referred to as the trustor, while the lender is referred to as the beneficiary. [2]

Contents

Overview

Transactions involving deeds of trust are normally structured, at least in theory, so that the lender/beneficiary gives the borrower/trustor the money to buy the property; the borrower/trustor tenders the money to the seller; the seller executes a grant deed giving the property to the borrower/trustor; and the borrower/trustor immediately executes a deed of trust giving the property to the trustee to be held in trust for the lender/beneficiary. In reality, an escrow holder is always used so that the transaction does not close until the escrow holder has the funds, grant deed, and deed of trust in their possession. This ensures the transaction can be easily rescinded if one party is unable to complete its part of the deal.

Deeds of trust differ from mortgages in that deeds of trust always involve at least three parties, where the third party holds the legal title, while in the context of mortgages, the mortgagor gives legal title directly to the mortgagee. [3] In either case, equitable title always remains with the borrower. [1] Both mortgages and deeds of trust are essentially security instruments in the form of conveyances; that is, they appear to provide on their face for absolute conveyances of legal title, but it is implicitly understood that the borrower is retaining equitable title and the conveyance is intended to merely create a security interest. This confusing situation is a legacy of the archaic (and now-obsolete) common law requirement of livery of seisin, under which English common law courts had refused to enforce shifting fees or springing freehold interests (that is, a gage for years that was supposed to automatically expand to fee simple title if the underlying debt was not repaid). [4]

A deed of trust is normally recorded with the recorder or county clerk for the county where the property is located as evidence of and security for the debt. The act of recording provides constructive notice to the world that the property has been encumbered. [5] When the debt is fully paid, the beneficiary is required by law to promptly direct the trustee to transfer legal title to the property back to the trustor by reconveyance, thereby releasing the security for the debt. [6]

Deeds of trust are the most common instrument used in the financing of real estate purchases in Alaska, Arizona, California, Colorado, the District of Columbia, Idaho, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia, whereas most other states use mortgages. Besides purchases, deeds of trust can also be used for loans made for other kinds of purposes where real estate is merely offered as collateral, and are also used to secure performance of contracts other than loans.

Power of sale and trustee's sale

A deed of trust has a crucial advantage over a mortgage from the lender's point of view. If the borrower defaults on the loan, the trustee has the power to foreclose on the property on behalf of the beneficiary. In most U.S. states, a deed of trust (but not a mortgage) can contain a special "power of sale" clause that permits the trustee to exercise these powers. An example is the standard conveyance clause from a Freddie Mac "uniform instrument":

Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property... [7]

In the states that enforce "power of sale" clauses, the courts have uniformly held that by executing a deed of trust with a "power of sale" clause, the owner has authorized the trustee to conduct a nonjudicial foreclosure in the event of default. [8] That is, unlike a mortgage, the lender need not sue the borrower in a state court; instead, the lender/beneficiary merely directs the trustee to mail, post, serve, publish, and/or record certain notices required by law, culminating in a "trustee's sale" at which the trustee auctions the property to the highest bidder. The borrower's equitable title normally terminates automatically by operation of law (under applicable statutes or case law) at the trustee's sale. The trustee then issues a deed conveying the legal and equitable title to the property in fee simple to the highest bidder. In turn, the successful bidder records the deed and becomes the owner of record. Thus, the advantage of deeds of trust is that the lender can recover the value of the collateral for the loan much more quickly, and without the expense and uncertainty of suing the borrower, which is why lenders overwhelmingly prefer such deeds to mortgages. [2]

The time periods for the "trustee's sale" or "power of sale" foreclosure process vary dramatically between jurisdictions. Some states have very short timelines. For example, in Virginia, it can be as short as two weeks. In California, a nonjudicial foreclosure takes a minimum of approximately 112 days from start to finish. The process starts only when the lender or trustee records a "notice of default" no matter how long the loan payments have been unpaid. For certain home loans made between 2003 and 2007, because of current economic conditions, California law was amended to add a temporary additional 60 days to the process.[ citation needed ]

Terminology

Historically, some of these documents were titled "deeds of trust" and others were titled "trust deeds," and U.S. case law prior to about 1990 tends to reflect both usages. Due to the rise of real estate securitization in the 1990s and the shift from "lend to hold" to "lend to securitize," the majority of residential real estate transactions are now completed with uniform security instruments which are consistently described as "deeds of trust" so as to avoid confusion with true trusts or true deeds (i.e., true conveyances rather than security interests in the form of conveyances). Thus, the more precise term of art "deed of trust" has become predominant in the case law since then.

Though a mortgage is technically an entirely different legal instrument (as noted above), deeds of trust are frequently called mortgages in the real estate loan business due to the functional similarity between deeds of trust and mortgages.

Although a deed of trust usually states that the borrower is making an "irrevocable" transfer to the trustee, it is common in many jurisdictions for borrowers to obtain second and third mortgages or trust deeds that make similar transfers to additional trustees (that is, of a property they already conveyed to the trustee on their first deed of trust). As with mortgages, deeds of trust are subject to the rule "first in time, first in right," meaning that the beneficiary of the first recorded deed of trust may foreclose and wipe out all junior deeds of trust recorded later in time. If this happens, the junior debt still exists, but may become unsecured. If the debtor has sufficient senior secured claims upon his assets, lacks equity, or is otherwise insolvent, the junior liens may be wiped out completely in bankruptcy.

See also

Related Research Articles

In property law, title is an intangible construct representing a bundle of rights in (to) a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

A mortgage is a legal instrument of the common law which is used to create a security interest in real property held by a lender as a security for a debt, usually a mortgage loan. Hypothec is the corresponding term in civil law jurisdictions, albeit with a wider sense, as it also covers non-possessory lien.

This aims to be a complete list of the articles on real estate.

A deed, commonly, is a legal document that is signed and delivered, especially one regarding the ownership of property or legal rights. More specifically, in common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.

<span class="mw-page-title-main">Foreclosure</span> Legal process where a lender recoups an unpaid loan by forcing the borrower to sell the collateral

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.

A due-on-sale clause is a clause in a loan or promissory note that stipulates that the full balance of the loan may be called due upon sale or transfer of ownership of the property used to secure the note. The lender has the right, but not the obligation, to call the note due in such a circumstance.

In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. One of the most common examples of a security interest is a mortgage: a person borrows money from the bank to buy a house, and they grant a mortgage over the house so that if they default in repaying the loan, the bank can sell the house and apply the proceeds to the outstanding loan.

In real estate business and law, a title search or property title search is the process of examining public records and retrieving documents on the history of a piece of real property to determine and confirm property's legal ownership, and find out what claims or liens are on the property. A title search is also performed when an owner wishes to sell mortgage property and the bank requires the owner to insure this transaction.

Secured transactions in the United States are an important part of the law and economy of the country. By enabling lenders to take a security interest in collateral, the law of secured transactions provides lenders with assurance of legal relief in case of default by the borrower. The availability of such remedies encourages lenders to lend capital at lower interest rates, which in turn facilitates the free flow of credit and stimulates economic growth.

A land contract,, is a contract between the buyer and seller of real property in which the seller provides the buyer financing in the purchase, and the buyer repays the resulting loan in installments. Under a land contract, the seller retains the legal title to the property but permits the buyer to take possession of it for most purposes other than that of legal ownership. The sale price is typically paid in periodic installments, often with a balloon payment at the end to make the timelength of payments shorter than in the corresponding fully amortized loan. When the full purchase price has been paid including any interest, the seller is obligated to convey legal title to the property. An initial down payment from the buyer to the seller is usually also required.

The equity of redemption refers to the right of a mortgagor to redeem his or her property once the debt secured by the mortgage has been discharged.

Mortgage fraud refers to an intentional misstatement, misrepresentation, or omission of information relied upon by an underwriter or lender to fund, purchase, or insure a loan secured by real property.

In the United States, a mortgage note is a promissory note secured by a specified mortgage loan.

<span class="mw-page-title-main">Real estate owned</span>

Real estate owned, or REO, is a term used in the United States to describe a class of property owned by a lender—typically a bank, government agency, or government loan insurer—after an unsuccessful sale at a foreclosure auction. A foreclosing beneficiary will typically set the opening bid at such an auction for at least the outstanding loan amount. If there are no interested bidders, then the beneficiary will legally repossess the property. This is commonly the case when the amount owed on the home is higher than the current market value of the foreclosure property, such as with a mortgage loan made at a high loan-to-value during a real estate bubble. As soon as the beneficiary repossesses the property it is listed on their books as REO and categorized as an asset..

<span class="mw-page-title-main">Mortgage</span> Loan secured using real estate

A mortgage loan or simply mortgage, in civil law jurisdictions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any purpose while putting a lien on the property being mortgaged. The loan is "secured" on the borrower's property through a process known as mortgage origination. This means that a legal mechanism is put into place which allows the lender to take possession and sell the secured property to pay off the loan in the event the borrower defaults on the loan or otherwise fails to abide by its terms. The word mortgage is derived from a Law French term used in Britain in the Middle Ages meaning "death pledge" and refers to the pledge ending (dying) when either the obligation is fulfilled or the property is taken through foreclosure. A mortgage can also be described as "a borrower giving consideration in the form of a collateral for a benefit (loan)".

In real estate, creative financing is non-traditional or uncommon means of buying land or property. The goal of creative financing is generally to purchase, or finance a property, with the buyer/investor using as little of his own money as possible, otherwise known as leveraging. Using these techniques an investor may be able to purchase multiple properties using little, or none, of his "own money".

A deficiency judgment is an unsecured money judgment against a borrower whose mortgage foreclosure sale did not produce sufficient funds to pay the underlying promissory note, or loan, in full. The availability of a deficiency judgment depends on whether the lender has a recourse or nonrecourse loan, which is largely a matter of state law. In some jurisdictions, the original loan(s) obtained to purchase property is/are non-recourse, but subsequent refinancing of a first mortgage and/or acquisition of a 2nd are recourse loans.

Seller financing is a loan provided by the seller of a property or business to the purchaser. When used in the context of residential real estate, it is also called "bond-for-title" or "owner financing." Usually, the purchaser will make some sort of down payment to the seller, and then make installment payments over a specified time, at an agreed-upon interest rate, until the loan is fully repaid. In layman's terms, this is when the seller in a transaction offers the buyer a loan rather than the buyer obtaining one from a bank. To a seller, this is an investment in which the return is guaranteed only by the buyer's credit-worthiness or ability and motivation to pay the mortgage. For a buyer it is often beneficial, because he/she may not be able to obtain a loan from a bank. In general, the loan is secured by the property being sold. In the event that the buyer defaults, the property is repossessed or foreclosed on exactly as it would be by a bank.

Mortgage Electronic Registration Systems, Inc. (MERS) is an American privately held corporation. MERS is a separate and distinct corporation that serves as a nominee on mortgages after the turn of the century and is owned by holding company MERSCORP Holdings, Inc., which owns and operates an electronic registry known as the MERS system, which is designed to track servicing rights and ownership of mortgages in the United States. According to the Department of the Treasury, the Board of Governors of the Federal Reserve, The Federal Deposit Insurance Corporation and the Federal Housing Finance Agency, MERS is an agent for lenders without any reference to MERS as a principal. On October 5, 2018, Intercontinental Exchange and MERS announced that ICE had acquired all of MERS.

In the United States, the Trustee Sale Guarantee (TSG) is the title guarantee that is issued at the beginning of a foreclosure. TSG helps the foreclosing trustee and beneficiary through the delivery of the information required in ensuring compliance with the statutes of foreclosure stipulated by the state.

References

  1. 1 2 Lush, Minnie; Sirota, David (2003). California Real Estate Finance (5th ed.). Chicago: Dearborn Real Estate Education. p. 246. ISBN   9780793136995 . Retrieved 7 December 2020.
  2. 1 2 Lush, Minnie; Sirota, David (2003). California Real Estate Finance (5th ed.). Chicago: Dearborn Real Estate Education. p. 245. ISBN   9780793136995 . Retrieved 7 December 2020.
  3. ↑ Dupee v. Rose , 10 Utah 305, 37 Pac. 567 (1894). This case discusses the structural differences between three-party deeds of trust and two-party mortgages, as well as the functional similarities of such instruments.
  4. ↑ In re Michigan Avenue National Bank, 2 B.R. 171, 174-80 (Bankr. N.D. Ill. 1980). This opinion by bankruptcy judge Richard L. Merrick explains the evolution of the common law of security interests in real property.
  5. ↑ Pacific Trust Co. TTEE v. Fidelity Federal Sav. & Loan Ass'n, 184 Cal. App. 3d 817, 229 Cal. Rptr. 269 (1986).
  6. ↑ Bartold v. Glendale Federal Bank, 81 Cal. App. 4th 816, 97 Cal. Rptr. 2d 226 (2000).
  7. ↑ Examples are available at Freddie Mac Single-Family Uniform Instruments.
  8. ↑ Apao v. Bank of New York, 324 F.3d 1091 (9th Cir. 2003); Bryant v. Jefferson Federal Sav. & Loan Ass'n, 509 F.2d 511 (D.C. Cir. 1974).
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