Let’s say you found your dream house with a charming backyard ready for purchase. The catch?
Traditional routes to property ownership may not offer the tailored solutions your situation demands.
For example, you may be experiencing one of the following:
- Your credit history is not impeccable, making it challenging to secure a traditional mortgage.
- You’re self-employed and lack the steady proof of income demanded by traditional lenders.
- You wish to negotiate terms directly with a property seller.
- You seek a repayment plan tailored to your unique financial situation.
This quest for alternatives brings us to two distinctive solutions: deed of trust and contract for deed.
In this article, we’ll explain the terms “contract for deed” and “deed of trust,” the way each works and how to choose between them based on their differences.
Let’s dive in!
Key takeaways
- A traditional mortgage may not suit your unique real estate goals, as they often follow a static, one-size-fits-all approach.
- Deeds of trust are typically an alternative to a mortgage used in different states.
- The direct nature of a contract for deed allows for personalized negotiations directly between buyer and seller, fostering a more dynamic and adaptable transaction.
- Trust deeds and contracts for deeds can be e-signed to ensure streamlined processes and paperless workflow.
How does a deed of trust work?
A deed of trust or a trust deed is a legal document used in financed real estate transactions as an alternative to mortgages in certain states.
Unlike mortgages that only involve a borrower and lender, a deed of trust introduces a neutral third party — a trustee.
Trust deeds are typically 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.
Deed of trust — key purpose
This instrument ensures the security of a real estate transaction by placing the property title in the hands of a trustee.
This remains in effect until the borrower fulfills the loan obligations.
Here is a list of potential trustees:
- Title companies due to their expertise in real estate transactions and property title transfers.
- Attorneys specializing in real estate law.
- Banks can act as neutral third parties to hold the property title.
- Escrow companies can also serve as trustees.
- An individual trusted by both parties may act as a trustee.
Foreclosure process
In case of borrower default, a deed of trust grants a trustee the authority to sell the property swiftly without the need for a time-consuming court proceeding, making foreclosure faster and cost-effective.
*Foreclosure is a legal process where a lender reclaims a property from a borrower who has failed to meet the terms of a financing agreement.
Property title
The property’s legal title remains under the trustee’s control until the debt is entirely paid off. After the repayment, the title seamlessly transfers to the borrower.
*A property title is a legal document that establishes ownership rights and interests in a real estate property, detailing boundaries and ownership history.
How does a contract for deed work?
A contract for deed stands out as a financing arrangement directly negotiated between a property buyer and seller without involving traditional lenders or mortgage institutions.
This alternative becomes particularly relevant for individuals facing challenges in securing conventional mortgages.
Contract for deed — key purpose
In this agreement, the buyer commits to paying the purchase price through scheduled installments.
Meanwhile, the seller maintains ownership of the property until the full purchase amount is settled.
Foreclosure process
In case of buyer default, regaining property ownership involves complex and prolonged court proceedings, extending the timeline for resolution.
Property title
The buyer gains possession of the property at the agreement commencement but doesn’t acquire legal title until all payments are fulfilled.
The buyer is responsible for the property’s upkeep and taxes throughout this period.
How is a contract for deed or deed of trust different from a traditional mortgage?
A mortgage involves two parties: a borrower (or mortgagor) and a lender (or mortgagee).
Traditional mortgages are standard legal arrangements where a borrower obtains funds from a lending institution, usually a bank, to purchase real estate, and the property itself is collateral for the loan.
The lender holds the title during the repayment period, and in case of default, initiates foreclosure proceedings.
This chart provides a clear breakdown of key differences between a contract for deed, deed of trust, and mortgage.
| Feature | Contract for deed | Deed of trust | Mortgage |
|---|---|---|---|
| Nature of agreement | Direct agreement between buyer and seller | Involves three parties: borrower, lender, and trustee | Involves two parties: borrower and lender |
| Financing | Seller finances the purchase | Lender provides the loan | Lender provides the loan |
| Foreclosure process | Typically requires a court proceeding and can be complex | Trustee has authority to sell the property without a court proceeding | Judicial foreclosure process involving court proceedings |
| Property title | Buyer does not receive legal title until full payment | Legal title held by the trustee until loan is fully repaid | Legal title held by the lender until loan is fully repaid |
| Property possession | Buyer usually takes possession from the start of the contract | Possession at the start of the agreement | Possession upon finalizing the mortgage, responsibility throughout |
| Terms flexibility | Negotiable terms directly between buyer and seller | Terms set by the lender with less flexibility for negotiation | Standard terms set by the lender with limited negotiation |
What happens if a borrower defaults on payment?
When a borrower fails to make payments, a lender, seller, or creditor initiates a legal process called foreclosure to recover the outstanding balance of a loan.
Within a deed of trust contract, the lender can initiate a simplified foreclosure process without a prolonged court proceeding.
The trustee can sell the property to recover the outstanding debt.
In the case of a contract for deed, this process is called repossession.
The aggrieved party (the seller) must resort to a court proceeding to regain possession and resolve the default.
The buyer may face repossession, and the legal complexities make this process more time-consuming
The legal steps typically include:
- Notice of default. The lender issues a formal notice declaring the borrower’s default on payment terms.
- Pre-foreclosure period. The borrower may have the opportunity to resolve the default by paying the outstanding amount or negotiating with the lender.
- Court filings. The lender initiates legal proceedings by filing a complaint.
- Court hearing. Both parties present their cases, and the court determines the validity of the default.
- Redemption period. Some jurisdictions grant a redemption period, allowing the borrower to settle outstanding payments and reclaim the property.
- Auction or sale. If the borrower fails, the court may order an auction or sale to recover the outstanding amount.
- Eviction. If the borrower doesn’t redeem the property during the specified period, a new owner may initiate eviction proceedings to take possession of the property.
- Deficiency judgment. If the property sale doesn’t cover the full outstanding debt, the lender may seek a deficiency judgment against the borrower.
Contract for deed vs deed of trust: pros and cons for each
Contract for deed and deed of trust each have their own advantages and disadvantages. Let’s break down the pros and cons.
| Type of contract | Contract for deed | Deed of trust |
|---|---|---|
|
Pros |
Direct negotiation for flexible terms. | Neutral third party adds security for the lender. |
| Suited for buyers with less-than-ideal credit. | May have traditional credit requirements. | |
| Allows customization of terms directly. | Faster foreclosure process without court. | |
| Buyer can take possession early in the process. | Buyer can take possession early in the process. | |
|
Cons |
Limited negotiation compared to direct sale. | Terms often set by the lender with less flexibility. |
| Higher risk for sellers due to credit flexibility. | Stringent credit criteria for borrowers. | |
| May lack standardization, leading to disputes. | Limited direct negotiation between buyer and seller. | |
| Buyer responsible for maintenance and taxes. | Limited negotiation; terms set by the lender. |
How PandaDoc’s document management platform can help streamline all real estate transactions
We’ve delved into the fundamental differences between a contract for deed and a deed of trust and shed light on the pros and cons of each.
But how can you ensure that your real estate transactions are not only legally sound but also streamlined for optimal efficiency?
Having the right document templates and document management software at your fingertips can make a significant difference.
PandaDoc’s real estate management software provides benefits for both lenders and borrowers for each scenario, and all your real estate transactions are made simple with our user-friendly templates and advanced eSignature features.
Please don’t hesitate to contact us for more details — and you can always start a free trial or schedule a 15-minute demo!
Disclaimer
PandaDoc is not a law firm, or a substitute for an attorney or law firm. This page is not intended to and does not provide legal advice. Should you have legal questions on the validity of e-signatures or digital signatures and the enforceability thereof, please consult with an attorney or law firm. Use of PandaDoc services are governed by our Terms of Use and Privacy Policy.
