release of assignment of deed of trust

Deed Of Trust: What It Is And How It Works

Updated: Mar 2, 2023, 3:15am

Buying property usually comes with an avalanche of paperwork. It can be a confusing process, especially when it comes to knowing the difference between the various documents you sign. If there’s one contract that’s important to understand, however, it’s the deed of trust.

Depending on your lender and the state you live in, you may or may not need a deed of trust when financing a home purchase. Here’s what you should know about this contract and how it differs from a mortgage .

What Is a Deed Of Trust?

When you finance the purchase of a property, you will sign either a mortgage or deed of trust—but not both. You can take out a mortgage in all 50 U.S. states, while a deed of trust is only available in some states.

A deed of trust is a legal document that secures a real estate transaction. It works similarly to a mortgage, though it’s not quite the same thing. Essentially, it states that a designated third party holds legal title to your property until you’ve paid it off according to the terms of your loan. Deeds of trust are recorded in public records just like a mortgage.

How Does a Deed of Trust Work?

A deed of trust exists so that the lender has some recourse if you don’t pay your loan as agreed. There are three parties involved in a deed of trust: the trustor, the beneficiary and the trustee.

The three parties involved in a deed of trust for a real estate transaction are a:

• Trustor. This is the person whose assets are being held in the trust, also known as the borrower (i.e., you). The title to your home is held by the trust until the loan is paid off. Even so, you remain the equitable owner as long as you keep paying the loan according to the terms outlined in the deed of trust. That means you enjoy all the benefits of being the homeowner, such as the right to live there and gain equity, even though you aren’t the legal title holder.
• Beneficiary. The beneficiary is the party whose investment interest is being protected. Usually, that’s the lender, though it also can be an individual with whom you have a contract.
• Trustee. The trustee holds the legal title of the property while you’re making payments on the loan. Trustees often are title companies, but not always. Once you’ve paid off your loan, the trustee is responsible for dissolving the trust and transferring the title to you.

If you sell the property before it’s paid off, the trustee will use proceeds of the sale to pay the lender the remaining balance (you keep the profits). If you fail to meet your payment obligations and default on the mortgage, the property would go into foreclosure , and the trustee would be responsible for selling the property.

What Is Included in a Deed of Trust

A deed of trust includes many important details about your property, loan and related terms and conditions—much of the same information you would find in your mortgage. Typically, you’ll find the following outlined in a deed of trust:

• The names of the parties involved (the trustee, trustor and beneficiary)
• The original loan amount and repayment terms
• A legal description of the property
• The inception and maturity dates of the loan
• Various clauses, such as acceleration and alienation clauses
• Any riders regarding the clauses outlined

It’s common for a deed of trust to include acceleration and alienation clauses. If you’re delinquent on your loan, it can trigger the acceleration clause—essentially a demand for immediate repayment of the loan. Depending on the terms, this can happen after missing just one payment, though lenders often give a few months of leeway to allow the borrower to catch up on payments. If you fail to do so under the terms outlined in the acceleration clause, the next step is formal foreclosure proceedings.

An alienation clause is also known as a due-on-sale clause and it prevents anyone who buys the property to take on the loan under its current terms. Instead, the alienation clause would dictate that the loan must be paid in full if you sell the property.

Depending on your state, the deed of trust may also include a power of sales clause. This allows for a much faster foreclosure process than if your lender had to involve the state courts in a judicial foreclosure. That said, you won’t be foreclosed on overnight under a power of sales clause; the exact process differs by state and lender. Still, if you’re facing a nonjudicial foreclosure, it can happen in a matter of months. If you want to formally fight the foreclosure, you’ll need to hire a lawyer.

States that allow power of sale foreclosures include: Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming.

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Deed of Trust Vs. Mortgage

The terms “deed of trust” and “mortgage” are often used interchangeably, but they’re really two different things. That said, there are also some similarities. To review, here are the key ways a mortgage and deed of trust are similar as well as different.

Similarities

• Public record: Both documents are recorded with the county clerk.
• Subject to state law: The exact terms of a mortgage or a deed of trust depend on the local state law.
• Contracts, not loans: Neither document serves as the actual loan agreement; a deed of trust or mortgage is a contract that places a lien on your property and dictates how your lender can repossess the property through foreclosure.

Differences

• Parties involved: A mortgage is an agreement between a borrower and lender, while a deed of trust involves a trustor, beneficiary and trustee.
• Foreclosure type: A mortgage requires a judicial foreclosure, while a deed of trust allows for a nonjudicial foreclosure.
• Foreclosure timeline: Judicial foreclosure on a mortgage can be a lengthy process, while nonjudicial foreclosure through a deed of trust is much faster.

What’s the Advantage of a Trust Deed Over a Mortgage?

If the borrower defaults, a trust deed makes it possible for the lender to sell the property without having to go to court. With a mortgage, the lender has to file a foreclosure claim in court and secure a judge’s approval to sell the property. This can mean a lot of expenses for both the borrower and the lender.

If you are investing in a real estate project, a trust deed also has a few advantages over a mortgage. This is because the investor is considered the lender in the transaction, and their name is recorded on the trust deed as such. The investor can receive interest on their “loan” and the principal is repaid in full once the property has been built.

Warranty Deed Vs. Deed of Trust

Both a warranty deed and deed of trust are used to transfer the title of a property from one person to another. However, the difference between these two contracts is who is protected. As you now know, a deed of trust protects the beneficiary (lender). A warranty deed, on the other hand, protects the property owner.

When a property title is transferred with a warranty deed, ownership goes from the seller (also known as the grantor) to the buyer (also known as the grantee). The warranty deed guarantees that the previous owners, or grantor, had full ownership of the property and right to transfer it. In other words, it promises that you won’t inherit any liens or future claims against the property. It provides peace of mind that you own the property outright once the title is in your name.

Are Trust Deeds a Good Idea?

Trust deeds could be a good idea if you are an investor searching for options to earn passive income, while also being protected via the deed. However, investing in real estate is unpredictable and returns are never guaranteed. A trust deed does not reduce the probability of default or ensure that you will recoup your initial investment.

Consult with a financial advisor or investment professional before going down this route.

Personal finance writer Casey Bond contributed to this article.

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Frequently Asked Questions (FAQs)

What is an assignment of deed of trust.

An assignment of trust deed is necessary if a lender sells a loan secured by a trust deed. It assigns the trust deed to whoever buys the loan (such as another lender), granting them all the rights to the property. It is recorded along with the original, making it a matter of public record.

What happens with the deed of trust after you pay off your mortgage?

Once you pay off your loan, the trustee is responsible for releasing the trust and transferring the title to you. You now have full ownership of the home.

Can you sell a house with a deed of trust?

Yes, you can. However, if you are selling the house for less than the loan amount, you will need the lender’s approval. Once the property is sold, the trustee uses the proceeds to pay the lender what they are still owed. The borrower then gets any money that is left over.

How long does a deed of trust last?

A deed of trust, like a mortgage, typically has a maturity date, which is when the loan must be paid off in full. That date will vary transaction to transaction. Sometimes a deed of trust won’t have a maturity date. In this scenario, state law dictates the number of years a deed of trust lasts, anywhere from 10 to 60 years after it was recorded.

What is a purchase money deed of trust?

A purchase money deed of trust secures the funds used to buy the property. It also gives the buyer priority over any liens or encumbrances against them

Does a deed of trust show ownership?

No. A deed of trust is a legal document that secures a real estate transaction. It only shows that a designated third party holds legal title—i.e. ownership—to your property until you’ve paid it off, according to the terms of your loan.

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A Deed of Trust can be Assigned Apart from the Note, and that often occurs just before a foreclosure. But What Does That Mean? Not Much, the Deed of Trust is Inseparable from the Note

Notes and Deeds of Trust are often assigned to different parties. The question posed is what happens if the Deed of Trust alone is assigned ? A typical assignment of the Deed of Trust alone will purport to assign “all beneficial interest under that certain Deed of Trust dated xyz..” But the long-established law in California is clear: the beneficial interest under a Deed of Trust is held by the party who holds the Note (or is entitled to enforce it), without regard to the assignment of the Deed of Trust .

The subject was again addressed by the California Courts in Domarad v. Fisher & Burke, Inc. (1969) 270 Cal. App. 2d 543 ). The Court noted that a deed of trust is a mere incident of the debt it secures and that an assignment of the debt carries with it the security. “The deed of trust is inseparable from the debt and always abides with the debt, and it has no market or ascertainable value, apart from the obligation it secures and that a deed of trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the deed of trust without a transfer of the debt is without effect. (emph. added)”

In Stockwell v. Barnum ((1908) 7 Cal. App. 413) the Court stated that this Code “is wholly foreign to deeds of trust, which, instead of creating a lien only, as in the case of a mortgage, passes the legal title to the trustee, thus enabling him in executing the trust to transfer to the purchaser a marketable record title. It is immaterial who holds the note. The transferee of a negotiable promissory note, payment of which is secured by a deed of trust whereby the title to the property and power of sale in case of default is vested in a third party as trustee, is not an incumbrancer to whom power of sale is given…” Stockwell @ 417.

And more recently “it has been established since 1908 that this statutory requirement that an assignment of the beneficial interest in a debt secured by real property must be recorded in order for the assignee to exercise the power of sale applies only to a mortgage and not to a deed of trust.” ( Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118 , 122.)

Why is that? There is a technical difference between the two security instruments. The mortgage only involves two parties –the borrower who grants the power of sale to the lender, and the lender who then holds the beneficial interest in the mortgage plus the power of sale. A deed of trust, on the other hand, involves three parties: the borrower, the lender, and the trustee who is granted conditional title to the encumbered property as well as the power of sale.

Thus, the deed of trust may thus be assigned one or multiple times over the life of the loan it secures. But if the borrower defaults on the loan, only the current beneficiary may direct the trustee to undertake the nonjudicial foreclosure process. “[O]nly the ‘true owner’ or ‘beneficial holder’ of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law.” Yvanova v. New Century Mortgage (62 Cal. 4th 919) (2016)

An Alternative The Commercial Code also provides a mechanism for recording an assignment of the security if there has been an off-record transfer of the note but no recorded assignment of the deed of trust or mortgage. The buyer of the note can record a copy of the transfer agreement whereby the note was acquired, together with a sworn statement that a default has occurred, and in that event may proceed with a nonjudicial foreclosure. ( Cal. Com. Code, § 9607, subd. (b))

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REAL ESTATE LAW

What is a corporate assignment of deed of trust.

By Editorial Team

September 26, 2017

Reviewed by Michelle Seidel, B.Sc., LL.B./JD, MBA

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• What Is a Deed of Trust With Assignment of Rents?

A deed of trust is often used interchangeably with the term mortgage (although they have varying meanings depending on the state) and is the document that assigns the title and value of the property to specific parties. In a typical deed of trust , the deed is held by a certain agency, usually the lender or the escrow company, while the borrower pays back the mortgage. When the mortgage is paid, the title is given back to the borrower, but deeds of trust do not always stay in the same hands all the time.

​ Read More: ​ What is an Assignment of Trust Deed?

An assignment of a deed of trust is simply the movement of the deed of trust from one party to another, a party that was not originally involved in the deed creation when the property was bought. A corporate assignment is simply an assignment of the deed of trust between different businesses. Since the majority of mortgages are created by banks and lending institutions and not private lenders, most assignments of deeds of trust are corporate by nature.

Lender Assignments

Not all lenders reassign the deeds of trust that they hold, but some do and the practice is common. The lender typically moves the deed of trust into the hands of another lender. The other lender takes the place of the organization that originally made the loan, and the mortgage contract rules now apply to the new business. Lenders do this for several different reasons. For example, many choose to assign deeds of trust when they are selling mortgages in order to create immediate profit for themselves by selling the possession of the deed itself.

Requirements

The key part of a corporate assignment of a deed of trust is the debt obligation. The acquiring company wants to make sure that the borrower will now be making payments to them, not the original lender, so assignments are usually very clear on this matter. Assignment forms vary by state in other matters, depending on what regulations states have when it comes to transferring mortgages and similar documents.

Reconveyance

When the mortgage is paid off, the escrow company will initiate a reconveyance, ending the deed and moving the title from the lender to the hands of the borrower. This is a final type of assignment. It is not strictly corporate unless the borrower also was a business, but it represents the end of the process and a reconveyance (known as a satisfaction or cancellation depending on the state) is closely related to an assignment.

​ Read More: ​ What Is a Deed of Trust With Assignment of Rents?

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• Legal Beagle: What Is a Deed of Trust With Assignment of Rents?
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This article was written by Legal Beagle staff. If you have any questions, please reach out to us on our contact us page.

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What Is a Trust Deed?

Understanding trust deeds, trust deed vs. mortgage, what is included in a trust deed, foreclosures and trust deeds.

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Investopedia / Danie Drankwalter

A trust deed —also known as a deed of trust —is a document sometimes used in real estate transactions in the U.S. It is a document that comes into play when one party has taken out a loan from another party to purchase a property. The trust deed represents an agreement between the borrower and a lender to have the property held in trust by a neutral and independent third party until the loan is paid off.

Although trust deeds are less common than they once were, some 20 states still mandate the use of one, rather than a mortgage , when financing is involved in the purchase of real estate. Trust deeds are common in Alaska, Arizona, California, Colorado, Idaho, Illinois, Mississippi, Missouri, Montana, North Carolina, Tennessee, Texas, Virginia, and West Virginia.

A few states—such as Kentucky, Maryland, and South Dakota—allow the use of both trust deeds and mortgages.

Key Takeaways

• In financed real estate transactions, trust deeds transfer the legal title of a property to a third party—such as a bank, escrow company, or title company—to hold until the borrower repays their debt to the lender.
• Trust deeds are used in place of mortgages in several states.
• Investing in trust deeds can provide a high-yielding income stream.

A trust deed is a transaction between three parties:

• Lenders , officially known as beneficiaries . These are the interests a trust is supposed to protect.
• A borrower , otherwise known as a trustor . This is the person who establishes a trust.
• A trustee , a third party charged with holding the entrusted property until a loan or debt is paid for in full.

In a real estate transaction—the purchase of a home, say—a lender gives the borrower money in exchange for one or more promissory notes linked to a trust deed. This deed transfers legal title to the real property to an impartial trustee , typically a title company, escrow company, or bank, which holds it as collateral for the promissory notes . The equitable title—the right to obtain full ownership—remains with the borrower, as does full use of and responsibility for the property.

This state of affairs continues throughout the repayment period of the loan. The trustee holds the legal title until the borrower pays the debt in full, at which point the title to the property transfers to the borrower. If the borrower defaults on the loan, the trustee takes full control of the property.

Trust deeds and mortgages are both used in bank and private loans for creating liens on real estate, and both are typically recorded as debt in the county where the property is located. However, there are some differences.

Number of Parties

A mortgage involves two parties: a borrower (or mortgagor) and a lender (or mortgagee). When a borrower signs a mortgage, they pledge the property as security to the lender to ensure repayment.

In contrast, a trust deed involves three parties: a borrower (or trustor), a lender (or beneficiary), and the trustee. The trustee holds title to the lien for the lender's benefit; if the borrower defaults, the trustee will initiate and complete the foreclosure process at the lender's request.

Type of Foreclosure

In the event of default, a deed of trust will result in different foreclosure procedures than a mortgage. A defaulted mortgage will result in a judicial foreclosure, meaning that the lender will have to secure a court order. Trust deeds go through a non-judicial foreclosure, provided that they include a power-of-sale clause.

Judicial foreclosures are more expensive and time-consuming than non-judicial foreclosures. This means that in states that allow them, a deed of trust is preferable to a mortgage from the lender's point of view.

Contrary to popular usage, a mortgage is not technically a loan to buy a property; it's an agreement that pledges the property as collateral for the loan.

A deed of trust will include the same type of information stated in a mortgage document, such as:

• The identities of the borrower, lender, and trustee
• A full description of the property to be placed in trust
• Any restrictions or requirements on the use of the property while it is in trust
• The terms of the loan, including principal, monthly payments, and interest rate
• The terms of any late fees and penalties in the event of repayment

In addition, a trust deed will also include a power of sale clause that gives the trustee the right to sell the property if the borrower defaults.

Mortgages and trust deeds have different foreclosure processes. A judicial foreclosure is a court-supervised process enforced when the lender files a lawsuit against the borrower for defaulting on a mortgage. The process is time-consuming and expensive.

Also, if the foreclosed property auction doesn't bring in enough money to pay off the promissory note, the lender may file a deficiency judgment against the borrower, suing for the balance. However, even after the property is sold, the borrower has the right of redemption : they may repay the lender within a set amount of time and acquire the property title.

In contrast, a trust deed lets the lender commence a faster and less expensive non-judicial foreclosure, bypassing the court system and adhering to the procedures outlined in the trust deed and state law. If the borrower does not make the loan current, the property is put up for auction through a trustee's sale.

The title transfers from the trustee to the new owner through the trustee's deed after the sale. When there are no bidders at the trustee sale, the property reverts to the lender through a trustee's deed. Once the property is sold, the borrower has no right of redemption.

Furthermore, a trustee has the responsibility of paying the proceeds from the sale to the borrower and lender after the sale is finalized. The trustee will pay the lender the amount left over on the debt and pay the borrower anything that surpasses that amount, thereby allowing the lender to purchase the property.

Pros and Cons of Investing in Trust Deeds

Investors who are searching for juicy yields sometimes turn to the real estate sector—in particular, trust deeds.

In trust deed investing, the investor lends money to a developer working on a real estate project. The investor's name goes on the deed of trust as the lender. The investor collects interest on the loan; when the project is finished, the principal is returned to the investor in full. A trust deed broker usually facilitates the deal.

High-yielding income stream

Portfolio diversification

Illiquidity

No capital appreciation

What sort of developer enters this arrangement? Banks are often reluctant to lend to certain types of developments, such as mid-size commercial projects—too small for the big lenders, too big for the small ones—or developers with poor track records or too many loans. Cautious lenders may also move too slowly for developers up against a tight deadline for commencing or completing a project.

Developers like these are often in a bit of a crunch. For these reasons, trust deed investors may often expect high interest rates on their money. They can reap the benefits of diversifying into a different asset class without having to be experts in real estate construction or management. This is a form of passive investment .

Trust deed investing has certain risks and disadvantages. Unlike stocks, real estate investments are not liquid , meaning investors cannot retrieve their money on demand. Also, investors can expect only the interest the loan generates; any additional capital appreciation is unlikely.

Invested parties may exploit any legal discrepancies in the trust deed, causing costly legal entanglements that may endanger the investment. The typical investor with little experience may have difficulty, as it takes specific expertise to find credible and trustworthy developers, projects, and brokers.

Real-World Example of a Trust Deed

A short-form deed of trust document used in Austin County, Texas , covers the requirements for most lenders. The form begins with a definition of terms and spaces for the borrower, lender, and trustee to fill in their names. The amount being borrowed and the address of the property are also required.

After this section, the document goes on to specify the transfer of rights in the property and uniform covenants including:

• Details about payment of principal and interest
• Escrow funds
• Property insurance and structure maintenance
• Structure occupancy—stipulating the borrower must take up residency within 60 days

The form also includes nonuniform covenants, which specify default or breach of any of the agreement terms. And it specifies that the loan the document deals with is not a home equity loan —that is, something the borrower will receive cash from—but one for purchasing the property.

The deed of trust ends with a space for the borrower's signature, which must be done in the presence of a notary and two witnesses, who also sign.

What Is Assignment in a Deed of Trust?

In real estate law, " assignment " is simply the transfer of a deed of trust from one party to another. This usually happens when the beneficiary of a trust deed sells their loan to another lender.

What Is Reconveyance in a Deed of Trust?

In real estate law, reconveyance means the transfer of a property from a lender or trustee to a borrower. This usually happens at the end of a mortgage or other loan, when the borrower has satisfied the terms of their debt.

Who Can Be a Trustee in a Deed of Trust?

Some states have laws limiting who can act as a trustee in a deed of trust. In these states, the trustee must be a bank, credit union, thrift, title insurance company, attorney, or other company specifically authorized to hold a trust. In other states, anyone can act as a trustee.

Trust deeds are an alternative to mortgages in certain states. Instead of an agreement directly between a lender and a borrower, a trust deed places the title of a property in the hands of a third party , or trustee. Only after the borrower has satisfied the terms of their debt to the lender will the property be fully transferred to the borrower.

Rocket Lawyer. " Which States Allow Deeds of Trust? "

Legal Information Institute. " Non-Judicial Foreclosure ."

Legal Zoom. " Naming a Trustee in Your Deed of Trust ."

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When buying real estate with borrowed money, or financing the sale of real estate you own, a deed of trust may be one of the required documents you will sign at closing.

Table of Contents

What is a deed of trust, how is a deed of trust different from a mortgage or a promissory note, who are the parties to a deed of trust, what are the trustee's rights under a deed of trust, when should a deed of trust be used, what information should be included in a deed of trust, what duties does the trustee have under a deed of trust if the buyer does not meet their obligations, what you should do before signing a deed of trust, how to create a deed of trust.

A deed of trust is a legal document that is the security for a real estate loan. The document itself is recorded with the county recorder or registrar of titles in the county where the real estate is located. 

When a deed of trust is required by state law, it is just one of many forms the parties sign at the real estate closing. Typically, the deed of trust is prepared by the lender, who is agreeing to put up money to finance the buyer's purchase.

In some states, a deed of trust is used instead of a mortgage . A mortgage agreement creates a lien against the real property, protecting the lender from a situation where the borrower defaults on their obligations. While both a deed of trust and a mortgage provide a security interest for the lender in the property, the lender does not hold the security interest as is the case in a traditional mortgage. A mortgage agreement is between two parties: the borrower and the lender. With a deed of trust, a third-party trustee holds the equitable title to the real property secured by the deed. 

Deeds of trust are used in conjunction with promissory notes . The deed of trust is the security for the amount loaned to finance the real estate purchase, and is secured by the underlying piece of real estate. The deed of trust is what secures the promissory note. The promissory note includes the interest rate, the payment amounts and terms, and the buyer's promise to pay the lender the amount borrowed plus interest. 

The promissory note is held by the lender until the loan is paid in full, and generally is not recorded with the county recorder or registrar of titles (sometimes also referred to as the county clerk, register of deeds, or land registry) whereas a deed of trust is recorded.

There are three parties to a deed of trust, as opposed to a traditional real estate mortgage in which the parties are simply the borrower and the lender. A deed of trust includes the following parties:

• Trustor – This is the borrower (the person purchasing the home or other piece of real estate).
• Lender – This is the person or entity putting up the funds for the purchase.
• Trustee – This is an independent third party that holds legal title to the real estate. The trustee is independent because they do not represent either the seller or the buyer in a real estate transaction. The trustee is usually a separate legal entity like a title company.

In some cases, there is a fourth party to a deed of trust, known as a guarantor. This is someone else who signs along with the trustor, providing another avenue for the lender to be repaid in the event the borrower defaults on their obligations.

The trustee retains the right to sell the property if the trustor (borrower) defaults on their obligations under the agreement. If the terms of the loan are met and the buyer meets their obligation, then the trustee transfers/reconveys ownership of the property to the buyer who will then hold equitable title to their property.

Some states are "mortgage states" that do not use deeds of trust. In other states , state law requires the use of a deed of trust whenever the buyer is borrowing some or all of the money needed to finance their purchase of real estate. In approximately 15 states, either a mortgage or a deed of trust may be used to secure the lender's interest in a real property transaction. 

From the lender's standpoint, using a deed of trust may be preferable because doing so allows them to legally sidestep what can be a time-consuming and expensive judicial foreclosure process, if the borrower defaults on their loan payments. 

While this article focuses on deeds of trust being used for the initial purchase of real estate, they may also be used for other types of loans and contracts when the real estate will serve as collateral for the loan or performance of the contract.

A deed of trust should include key information about the transaction. As with any legal document, it is important to ensure this information is accurate before signing a deed of trust at closing. Deeds of trust typically include the following components:

• The dollar amount being financed (the principal, or the amount of funds the lender is providing for the purchase).
• The start date or inception date of the loan, and the maturity date. The maturity date is the date when the loan is expected to be paid in full.
• The legal description for the property. This is different from the property's street address. The legal description is the official description on file with the county, identifying the parcel of land. It may be a "metes and bounds" description, or it may identify the official name for the subdivision, the block number in the subdivision, and the specific lot number being purchased. If you are preparing a deed of trust and are not sure what the legal description for the property is, check with the county recorder's office to obtain the correct language to use.
• Additional information describing the property such as diagrams or floor plans, although these are not legally required to be included.
• The parties to the transaction. As discussed above, the parties include the trustor (the borrower), the lender, and the trustee who will hold title until the loan is paid in full.
• The specific provisions, terms, and requirements of the mortgage, as agreed to by the parties.
• The amount of late fees that will be assessed if payments are not made on time as agreed, and provisions around when they will be assessed. For example, while payments on the loan may be due on the first of each month, the deed of trust may provide that late fees will be assessed and due if the loan payment is not received by the 15th day of the month it is due.
• Specifics about the legal procedures that will apply if the terms of the loan are not met. This may be referred to as the "power of sale" clause. This is the language that legally authorizes the trustee to sell the property outside of court if the buyer does not meet his or her obligations under the deed of trust and promissory note.
• An acceleration or alienation clause, which is a provision that allows the lender to require immediate payment in full if certain events occur. For example, if the trustor (the buyer) transfers title and sells the property, the lender will be entitled to payment in full of the remaining balance due and any outstanding fees and interest.
• Prepayment penalties, if applicable. If this provision is included, the trustor (buyer) will have to pay an additional sum of money if they want to pay the outstanding loan balance in full before its maturity date.
• Terms for adjustable rate mortgages (ARMs) may also be included as a rider to a deed of trust.

If the borrower does not follow through with their obligation to make payments as specified in the agreement, then the trustee is authorized to take legal action on behalf of the lender. These provisions will be spelled out in the deed of trust, and are governed by state statutes. The trustee may substitute another trustee in their place to handle the foreclosure process. 

Regardless of who is serving as trustee—whether it is the original trustee or a substitute trustee for the foreclosure—the required legal formalities must be met. The trustee is responsible for taking the following actions when the buyer defaults :

• Filing or mailing notices for public records
• Publishing notices in legal newspapers for a set period of time (as defined by state statutes)
• Taking any other action specified under state law

When those requirements have been met, the trustee is authorized and required to sell the property at a trustee's sale without going through a formal judicial foreclosure process. Any such trustee's sale must be neutral, without benefiting either the trustor or the trustee. Trustee's sales are binding and final.

The trustee must then distribute the proceeds, with the lender having a right to the proceeds up to the amount of the unpaid loan and the buyer receiving the remainder. 

The buyer does retain certain rights during the foreclosure process, before the trustee's sale. For example, after the trustee records a notice of default with the county, the borrower has a certain period of time (as specified by state law) to reclaim the property by making all required payments and paying any fees imposed by the trustee. The time period for the power of sale provision varies from state to state, ranging from two weeks to four months or more.

Before you sign a deed of trust, it is important to understand what you are signing. You should know what your obligations are, and what the trustee's rights are, under the agreement. You should also double check:

• your name is spelled correctly,
• the dollar amount of the principal amount borrowed and the payment amounts look correct,
• the interest rate is what you agreed to, and
• you understand any prepayment penalty provisions.

When you are ready to sign a deed of trust, the parties will need to sign in the presence of a notary public. This documents that the parties' signatures were authentic. 

The deed of trust must then be recorded with the county where the property is located, and each of the parties (the trustor, trustee, and lender) should keep a copy of the recorded document.

Understanding what a deed of trust is and how it works is important for anyone involved in a transaction where a deed of trust will be used instead of a mortgage agreement.

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What is an Assignment of Trust Deed?

Assigning a deed of trust transfers it to a new lender.

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•   1. How Can an Heir Take Title to a Deed That Has an Outstanding Mortgage?
•   2. Warranty Deed Vs. Deed of Trust
•   3. Types of Mortgage Instruments

A trust deed, formally known as a deed of trust, is used with mortgages in some states to streamline things in the event of foreclosure. As with normal mortgages, the lender may sometimes choose to assign, or transfer, the deed of trust to another lender. The assignment doesn't change the borrower's obligations under the deed of trust; she will be equally obligated to repay the new lender as well.

Deed of Trust

Mortgages using a deed of trust have the same legal effect as other types of mortgages: They allow a property buyer or owner to take out a loan that uses the property as security on that loan. But the deed of trust mortgage differs slightly by using a third party, the trustee, as part of the transaction. In order to secure the loan, the property owner transfers title in the property to the trustee via deed of trust. The trustee then holds the deed over the life of the mortgage.

Use of Deed

The trustee holds the deed of trust as evidence of his right to take title to the property on the lender's behalf if the borrower defaults, or fails to perform, on the loan. In a typical mortgage scenario, the lender must go to court for the right to foreclose on the property. In a deed of trust scenario, the lender gives the trustee the right to foreclose on the deed of trust by selling the property.

Assigning Trust Deeds

For financial benefit, lenders sometimes choose to sell their rights in deed of trust mortgages to other lenders. This process is known as assignment of the mortgage. Unless the language of the mortgage or deed of trust prohibits it, a lender may assign the deed of trust at any time over the life of the mortgage, and many mortgages go through several lenders over their lifetime.

Effect of Assignment

Assignment of a deed of trust will not affect the borrower's rights and obligations regarding the mortgage. The new lender will typically inform the borrower of the transfer, and the borrower may need to send mortgage payments to a new company, but otherwise, the assignment is not that significant from the borrower's end. If the borrower is unhappy about the assignment, she has several options: pay off the mortgage outright; take out a new mortgage with a different company in order to pay off the old one; or attempt to negotiate with the new lender to change the terms of the loan.

• Cornell Legal Information Institute: Deed of Trust
• U.S. Legal: Deed of Trust Law and Legal Definition
• StopForeclosureFraud.com: What Is an Assignment of Mortgage?
• 'Lectric Law Library: Assignment of Mortgage or Deed of Trust

Erika Johansen is a lifelong writer with a Master of Fine Arts from the Iowa Writers' Workshop and editorial experience in scholastic publication. She has written articles for various websites.

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What Is a Deed of Trust?

A deed of trust, also called a trust deed, is a legal agreement made at a property's closing. It is a type of secured real estate transaction used in some states in place of a mortgage. The individual purchasing a property and a lender make this agreement, which states that the property buyer will repay a loan. A third party, known as a trustee, holds the property's legal title until the loan gets paid in full.

A deed of trust is the security for a loan and gets recorded in public records. Some states will require a borrower to sign a deed of trust to take out a home loan, much like other states require signing a mortgage. Fundamental differences exist between deeds of trust and mortgages, however. For example, a deed of trust requires more people to be involved in the property sale than a mortgage would. Only a mortgage gets executed through the judicial system.

What Must a Deed of Trust Include?

To be considered a legally binding document, any deed of trust needs to cover several critical details. Required information includes the following:

• Original loan amount
• Description of the property used as collateral or security ( here is an article about using collateral for a loan)
• Names of all parties involved (such as trustor, beneficiary, and trustee)
• The inception date of the loan
• The maturity date of the loan
• Any fees, such as late fees
• Provision and requirements of the mortgage
• Legal procedures in case of default, such as a power of sale clause ( here is an article about power of sale)
• Acceleration and alienation clauses to explain when the homeowner is considered delinquent or what happens when the individual sells the property
• Any riders with clauses such as terms of an adjustable-rate mortgage or prepayment penalties

Who Is Involved With a Deed of Trust?

Three parties must be involved with any deed of trust:

• Trustor: This party is the borrower. A trustor is sometimes called an obligor.
• Trustee: As a third party to a deed of trust, the trustee holds the property's legal title.
• Beneficiary: This party is the lender.

A trustee represents neither the borrower nor the lender. Instead, the trustee is an entity that holds the power of sale in case a borrower defaults. The trustee is typically a title or escrow company.

How Does a Deed of Trust Work?

A borrower gives a lender one or more promissory notes in exchange for the deed of trust. Promissory notes are documents that the borrower signs which state the borrower's promise to pay back a debt. The promissory note will contain information such as the interest rate along with other obligations of the agreement.

After the borrower pays the deed in full, the trustee will reconvey the property to its buyer. A promissory note is marked as paid in full once the buyer pays the loan entirely, and the property buyer receives the deed.

A trustee may file a notice of default if the borrower does not pay following the terms of the promissory note. A trustee may also substitute a different trustee for handling foreclosure.

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Deed of Trust Versus Mortgage

A deed of trust and a mortgage serve a similar purpose, but some key distinctions exist between the two types of legal documents.

Differences Between Deeds of Trusts and Mortgages

Significant differences between the two documents include the following:

• Foreclosure type: The foreclosure type a property owner faces will depend on whether the property owner has a deed of trust or mortgage. Someone who has a deed of trust typically faces a nonjudicial foreclosure, while a lender will need to go through the courts if a mortgage comes into play.
• Expense and length of foreclosure process: Since a lender will have to seek judicial foreclosure to take back a property using a mortgage loan, a mortgage generally takes more money and time for foreclosure proceedings. As a result, mortgage lenders tend to use deeds of trust in states that allow them. A lender will almost always spend less time and incur lower costs reclaiming a property when using a deed of trust instead of a mortgage.
• Parties involved: Only two parties, a borrower and a lender, are engaged in a mortgage contract. A deed of trust has a trustee, the neutral third party, involved in addition to the borrower and lender.

Similarities Between Deeds of Trusts and Mortgages

The two agreements also have a few significant similarities, including:

• Both agreements are distinct from loans: Neither a deed of trust nor a mortgage is a home loan. The loan states that a property owner will pay back a set amount of money to a lender, while both a deed of trust and a mortgage place a lien on a property.
• Both agreements allow for foreclosure: Both a deed of trust and mortgage give a lender a method of taking back a property via foreclosure. These agreements essentially state that if the borrower does not follow the loan terms, the lender can put the property into foreclosure.
• State law dictates both types of agreements: Both mortgages and foreclosure deeds are subject to state laws. The specific type of contract a lender must use will depend on what is legal in a particular state.

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Deed of Trust Versus Promissory Note

A deed of trust often requires a promissory note, but the promissory note is a specific document type. While a deed of trust describes the terms of debt as secured by a property, a promissory note acts as a promise that the borrower will pay the debt.

A borrower signs the promissory note in favor of a lender. The promissory note includes the loan's terms, such as payment obligations and the loan's interest rate. However, although the promissory note is usually a separate document, both a deed of trust and a mortgage can be legally considered a type of promissory note.

During the term of a loan, a lender keeps the promissory note, and the borrower only has a copy of the note. Once the borrower pays off the loan, the promissory note is marked as "paid in full." Then, the borrower receives the note with a recorded reconveyance deed.

Can You Use a Deed of Trust Anywhere?

State law governs the use of both deeds of trust and mortgages. Some states only legally allow mortgages, while other states only allow lenders to use deeds of trust. A few states will allow either type of contract. In these states, the lender gets to choose the type of agreement a borrower receives. Some states use neither mortgages nor deeds of trust but instead use other contracts such as security deeds for loan transactions to give lenders a security interest in the property.

Since state laws vary regarding the type of document you can use, it's always essential to consult with an experienced lawyer to discuss legal options and your state's requirements. A lawyer can also help ensure that you create and use a legally binding document that protects you in your specific situation regarding real estate transactions for residential or commercial property.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Termination & Release of Obligation of the Deed of Trust

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• How to Adjust Entries on a Trial Balance for Note Payable
• Difference Between a Lien & Encumbrance

A deed of trust is a legal document that provides mortgage lien security in favor of a lender or creditor. Satisfaction of the obligation underlying the deed of trust imposes an affirmative legal obligation on the creditor to terminate the deed of trust by releasing the lien from the collateral property.

A mortgage loan is more complicated than a standard agreement to borrow money. With a mortgage loan, the lender actually acquires a lien on certain property, called collateral, belonging to the borrower. The lender acquires the lien by recording a deed of trust, which identifies the collateral, in the public county property records. The lender maintains the lien on the collateral until the lender releases the deed of trust.

Underlying Obligation

A deed of trust is only half of the mortgage loan. The other half of the loan is a promissory note between the lender and borrower. The promissory note contains the borrower's promise to repay the loan according to a repayment schedule set forth in the note. In technical legal terms, the deed of trust provides security for the underlying promissory note.

Note Payoff

When a borrower pays off the underlying obligation -- the promissory note -- the borrower then has the right to demand that the lender release the deed of trust, including the lien arising under the deed of trust, from the collateral. The lender does this by filing a "Deed of Reconveyance and Release" or some other similarly-titled document that notes that the underlying obligation on the deed of trust has been paid off. Most state laws require the lender to record the Deed of Reconveyance and Release within a matter of months after payoff of the underlying obligation.

Voluntary Release

As long as any amount remains unpaid on the underlying promissory note, the lender generally has no legal obligation to terminate or release the deed of trust. However, the borrower can always negotiate with the lender to terminate and release the deed of trust. For example, the borrower might offer up replacement collateral for the lender, which would allow the borrower to sell or refinance the existing collateral. Or the borrower could offer to pay the lender a premium to release the deed of trust. Just because the lender agrees to release the deed of trust does not mean the repayment obligation under the promissory note is also released. The borrower will still have to abide by the terms of the promissory note even if the lender allows the lien on the collateral to terminate for some reason.

• "Real Estate Finance Law"; Grant S. Nelson and Dale A. Whitman; 2008

The Constitution Guru has worked as a writer and editor for "BYU Law Review" and "BYU Journal of Public Law." He is an experienced attorney with a law degree and a B.A. degree in history with an emphasis on U.S. Constitutional history, both earned at Brigham Young University.

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Savvino-storozhevsky monastery and museum.

Zvenigorod's most famous sight is the Savvino-Storozhevsky Monastery, which was founded in 1398 by the monk Savva from the Troitse-Sergieva Lavra, at the invitation and with the support of Prince Yury Dmitrievich of Zvenigorod. Savva was later canonised as St Sabbas (Savva) of Storozhev. The monastery late flourished under the reign of Tsar Alexis, who chose the monastery as his family church and often went on pilgrimage there and made lots of donations to it. Most of the monastery’s buildings date from this time. The monastery is heavily fortified with thick walls and six towers, the most impressive of which is the Krasny Tower which also serves as the eastern entrance. The monastery was closed in 1918 and only reopened in 1995. In 1998 Patriarch Alexius II took part in a service to return the relics of St Sabbas to the monastery. Today the monastery has the status of a stauropegic monastery, which is second in status to a lavra. In addition to being a working monastery, it also holds the Zvenigorod Historical, Architectural and Art Museum.

Belfry and Neighbouring Churches

Located near the main entrance is the monastery's belfry which is perhaps the calling card of the monastery due to its uniqueness. It was built in the 1650s and the St Sergius of Radonezh’s Church was opened on the middle tier in the mid-17th century, although it was originally dedicated to the Trinity. The belfry's 35-tonne Great Bladgovestny Bell fell in 1941 and was only restored and returned in 2003. Attached to the belfry is a large refectory and the Transfiguration Church, both of which were built on the orders of Tsar Alexis in the 1650s.  

To the left of the belfry is another, smaller, refectory which is attached to the Trinity Gate-Church, which was also constructed in the 1650s on the orders of Tsar Alexis who made it his own family church. The church is elaborately decorated with colourful trims and underneath the archway is a beautiful 19th century fresco.

Nativity of Virgin Mary Cathedral

The Nativity of Virgin Mary Cathedral is the oldest building in the monastery and among the oldest buildings in the Moscow Region. It was built between 1404 and 1405 during the lifetime of St Sabbas and using the funds of Prince Yury of Zvenigorod. The white-stone cathedral is a standard four-pillar design with a single golden dome. After the death of St Sabbas he was interred in the cathedral and a new altar dedicated to him was added.

Under the reign of Tsar Alexis the cathedral was decorated with frescoes by Stepan Ryazanets, some of which remain today. Tsar Alexis also presented the cathedral with a five-tier iconostasis, the top row of icons have been preserved.

Tsaritsa's Chambers

The Nativity of Virgin Mary Cathedral is located between the Tsaritsa's Chambers of the left and the Palace of Tsar Alexis on the right. The Tsaritsa's Chambers were built in the mid-17th century for the wife of Tsar Alexey - Tsaritsa Maria Ilinichna Miloskavskaya. The design of the building is influenced by the ancient Russian architectural style. Is prettier than the Tsar's chambers opposite, being red in colour with elaborately decorated window frames and entrance.

At present the Tsaritsa's Chambers houses the Zvenigorod Historical, Architectural and Art Museum. Among its displays is an accurate recreation of the interior of a noble lady's chambers including furniture, decorations and a decorated tiled oven, and an exhibition on the history of Zvenigorod and the monastery.

Palace of Tsar Alexis

The Palace of Tsar Alexis was built in the 1650s and is now one of the best surviving examples of non-religious architecture of that era. It was built especially for Tsar Alexis who often visited the monastery on religious pilgrimages. Its most striking feature is its pretty row of nine chimney spouts which resemble towers.

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