|
To pledge real property as
security for a loan, a borrower executes a legal instrument known as
either a mortgage -or- deed of trust as evidence of
the promise to repay a debt.
A "mortgage" is a two
party agreement between the "mortgagor" (owner/borrower)
and "mortgagee" (lender) whereby the owner
conveys a security interest in his property to the lender.
A "deed of trust" is
very similar to a mortgage but involves three parties instead of
two. The "mortgagor" grants the security interest
to a "trustee" who holds the real property in trust for
a "beneficiary" i.e., the lender.
Both instruments secure the
repayment of the debt through a document known as the
"mortgage note", or simply the "I.O.U."
Title Theory
Vs. Lien Theory
States vary as to how
mortgage liens are actually perfected and the process depends upon
whether the state is a title theory or lien theory
state.
In "title
theory"
states, actual "legal title" to the
property temporarily passes to a trustee to secure the debt.
The borrower (grantor), retains possession rights and
"equitable title" and has full use of the property for
the mortgage term. When the loan is paid off, legal title is restored without the necessity of a
reconveyance. Exp. North Carolina is a "title theory"
state.
In "lien
theory"
states, the lender (mortgagee) places a "lien" on
the mortgaged real property while the borrower retains both
"equitable" and "legal" title.
Most states follow the lien theory
concept however, except for technical differences, the distinction
between the two has little impact in most real estate transactions. |