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A Deed of Trust is a legal document that officially recognizes a legally binding relationship between three parties – the Borrower, the Lender, and the Trustee.

The Lender loans the Borrower money to purchase a home or other property, and as a security against the loan, the Borrower gives legal title to the property to the Lender. The Trustee holds this title in trust for the Lender until the loan is repaid in full. Once the loan has been paid off, the Trustee returns title to the Borrower.

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Assets required By definition, a trust is a legal relationship with regard to property. Thus, the common-law rule is that a trust does not exist without a res. 2d 'Trusts' § 47. The res may be of nominal value (e.g., $1). A charitable trust may be created by a transfer (inter vivos or by will).

Table of Contents

1. What Should be Included in a Deed of Trust?

Be sure to identify the following:

Borrower: who is borrowing the money and pledging the property
Lender: who is lending the money and receiving a lien on the property
Trustee: who is holding title in trust for the Lender
Principal Amount: the sum of money being borrowed and any interest
Property: a legal description of the property being pledged

These additional provisions can also be included:

Covenants: the Borrower promises that it owns the property and has the authority to mortgage the property
Default and Acceleration: the entire amount of the loan will become due if the Borrower defaults
Maintenance of Property: the Borrower must maintain the property in good repair and obtain an acceptable amount of insurance for the property
Ownership Transfer: if the Borrower transfers ownership, the entire amount of the loan may become due
Power of Sale: the Lender may instruct the Trustee to sell property through non-judicial foreclosure
Rights of Lender: the Lender can make payments to maintain the value of the property, which can then be added to the total loan amount
Security Interest: the Deed of Trust also secures any other liabilities of the Borrower to the Lender
Senior Mortgages: senior mortgages cannot be modified without the Lender’s permission

The Trustee can be an escrow agency, title company, trust company, insurance company, real estate broker, attorney, public official, or another neutral third party. Be sure to check your state’s laws for any restrictions on who can be a Trustee.

As a reference, this agreement is sometimes called:

Trust Deed
Mortgage Trust Deed

2. Deed of Trust vs Mortgage

A Deed of Trust and a Mortgage Agreement both create a lien on a piece of property in connection with a Loan Agreement or Promissory Note. Some states use Deeds of Trust, some states use Mortgage Agreements, and some states allow both.

The major difference between the two agreements is the Lender’s remedy if the Borrower defaults on the loan. Under a Deed of Trust, if the Borrower defaults, the Lender can instruct the Trustee to sell the pledged property in a non-judicial foreclosure sale. In a Mortgage Agreement, if the Borrower defaults, the Lender can only sell the property in a judicial foreclosure sale.

What’s the difference between non-judicial foreclosure and judicial foreclosure?

A Deed of Trust almost always contains a “power of sale” clause that allows the Trustee to sell the pledged property in a non-judicial foreclosure sale. This means that the Trustee can bypass the court system and go straight to the foreclosure sale process. Unlike judicial foreclosure, non-judicial foreclosure is a quick process and the property can be sold in as little as two to three months.

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In judicial foreclosure under a Mortgage Agreement, the Lender can only sell the property after receiving a judgment from the court authorizing the sale, forcing the Lender to go through the formal court process – filing the complaint, receiving an answer and possible counterclaims, arguing in a formal trial, and finally receiving a judgment. And the judgment may not even come out in the Lender’s favor. Depending on the court calendar, defense claims, and other unanticipated factors, the judicial foreclosure process could take anywhere from several months to several years.

Timeline For Foreclosure

Here is a simple chart explaining the differences between the two agreements:

Deed of Trust	Mortgage Agreement
Who are the parties:	Borrower Lender Trustee (escrow company, title company, neutral third party)	Borrower Lender
Who holds legal title:	Trustee	Lender
Who holds equitable title/right to use the property:	Borrower	Borrower
What happens if the Borrower defaults:	Non-judicial foreclosure sale without a court order	Foreclosure sale through the court system

Along with a Deed of Trust and Mortgage Agreement, there are four other types of deeds for you to choose from. Review the differences between deeds, and select the right one for your real estate transaction.

3. When Do I Need a Deed of Trust Form?

A Deed of Trust is an important security instrument in real estate transactions. Especially after the housing crisis in 2008 and today’s uncertain economy, Lenders will want added security that they will recoup the money they are lending to Borrowers. This agreement allows a Lender to quickly sell and recover some of their money if a Borrower stops paying, and at little cost and largely hassle-free. Because of this convenience, many states are moving away from Mortgage Agreements and allowing Lenders to use Deeds of Trust.

Here is a table detailing some common borrowers and lenders who might need one:

Possible lender	Possible borrower
Seller of a property or home	Buyer of a property or home
Private investor	Professional ‘flipper’
Private mortgage company	Company looking to purchase an office
Family member 1. Uncle or aunt helping their favorite family member 2. Older wealthier family member divesting estate (i.e. grandparents)	Family member 1. Nephew or niece paying for first home or apartment 2. Younger less wealthy family members in need of financial assistance (i.e. grandchildren)
Sympathetic friend with extra funds (i.e. able to lend but not give money)	Reliable friend needing cash (i.e. for a real estate investment opportunity)

A Deed of Trust must be filed with the appropriate local recording office. Be sure to leave space at the top of your document for the County Recorder’s office to put their seal on the document.

Why not just get a loan from the bank?

A private mortgage is a popular alternative to traditional loans from a large institutional bank. These banks and other traditional Lenders often have strict lending conditions, lots of paperwork, and very little wiggle room. In a private mortgage, both Lenders and Borrowers have more flexibility.

Lenders in a private mortgage can be a family member, a private investor, or a lending company specializing in private loans. They can work with Borrowers and come up with crea

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