How to Put a Lien on Real Estate with a Promissory Note and Deed of Trust
A trust deed is the functional equivalent of a mortgage. It does not transfer the ownership of real property, as the typical deed does. Like a mortgage, a trust deed makes a piece of real property security (collateral) for a loan. If the loan is not repaid on time, the lender can foreclose on and sell the property and use the proceeds to pay off the loan.
Note: A trust deed is not used to transfer property to a living trust (use a Grant Deed for that). Other than the terminology, trust deeds and living trusts have nothing in common. A living trust is used to avoid probate, not to provide security for a loan. See the Legal Research Guide on Wills, Trusts, and Estate Planning on our website for more information on that topic.
A trust deed is always used together with a promissory note ("prom note") that sets out the amount and terms of the loan. The property owner signs the note, which is a written promise to repay the borrowed money.
A trust deed gives the third-party "trustee" (usually a title company or real estate broker) legal ownership of the property. This means that the trustee has no control over the property as long as the borrower (aka property owner or "trustor") makes the agreed-upon loan payments and keeps the other promises in the trust deed. If the borrower defaults, however, the trustee has the power to sell the property to pay off the loan without having to file an action in court. The lender (aka "beneficiary") is then repaid from the proceeds.
There is no Judicial Council form for this procedure. Instead, the relevant document must be typed on 28-line pleading paper. Customizable templates may be downloaded from these links:
Click here to download this Guide, with step-by-step instructions, including sample forms.