Defeasance Clause: Definition And Overview
Lauren Bowling4-minute read
March 14, 2023
The “defeasance clause” – the phrase just sounds intimidating, doesn’t it? But in reality, the defeasance clause isn’t scary at all; it’s only invoked once you pay off your loan and meet the terms of your mortgage agreement.
When you close on a home, you own it, right? Not necessarily. It’s a bit more nuanced and it depends on the state where you live.
Let’s go over what the defeasance clause in real estate means for homeowners.
What Is A Defeasance Clause?
In a mortgage transaction, you’ll likely see two terms: there’s the mortgagee (the one giving the loan, aka the mortgage lender) and mortgagor (the one taking out the loan, aka the home buyer.)
A defeasance clause is a term within a mortgage contract that states the property’s title will be transferred to the borrower (mortgagor) when they satisfy payment conditions from the lender (mortgagee).
How Defeasance Clauses Work In A Mortgage
Legally, the concept of defeasance exists to protect the interests of you, the home buyer; it’s legally binding language that states when you pay off the loan of the house, you will then own the house outright and in full.
Owning a property outright and in full depends on the state where you live and how they interpret an aspect of real estate law called mortgage theory.
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Lien Theory Vs. Title Theory
Real estate laws vary from state to state, but they do fall into one of two categories when it comes to mortgage law theory: lien theory or title theory.
- In title theory states, the bank holds the ownership of the home until the loan is paid off.
- In lien theory states, the person who buys the property owns it – but the bank places a property lien against it when the buyer takes out a mortgage.
In a lien theory state, upon signing the mortgage contract, a borrower also signs a security deed that gives the bank legal title of the property, with the borrower retaining equitable title. Equitable title isn’t the same as legal title, it just means the borrower has the right to possess the home for the duration of the loan unless they sell or default.
The main difference between the two is seen when foreclosure proceedings happen. In a title theory state, foreclosures must go through the court. In a lien theory state, foreclosures are non-judicial and managed by a trustee, typically without the involvement of the court system.
Essentially, it is harder for a bank to kick you out of a home that you have equitable title to (lien theory states) than in a state where the bank wholly owns title to the property (title theory state) and you’re paying off a debt.
There is also a modification of the two theories as an alternative option. In intermediary theory states, the borrower holds the title, however, the bank can take it back without judicial proceedings if the borrower defaults.
Understanding Secured Title In Real Estate
Loans come in two varieties: secured and unsecured.
Unsecured debt is typically seen on smaller-balance financial products like credit cards. To give out large sums of money for expensive purchases like a home, most mortgage lenders require borrowers to secure the debt with collateral.
In most home purchase transactions, a buyer uses a mortgage to purchase the home, and secures the mortgage loan using that same property as collateral. With a secured mortgage the borrower is granted loan defeasance and a clear house title when they are able to fully repay their principal and interest payments and any other mortgage payment conditions.
In a lien theory state where a security deed is used to transfer legal title from the borrower to the bank at closing, the security deed is used to “secure” the mortgage rather than the home itself.
You’ll want to carefully examine your rights and what you’re legally entitled to in the event of foreclosure or default of your mortgage loan.
Defeasance Clause Exceptions
Not all mortgage agreements will include a defeasance clause because real estate laws and language vary from state to state depending on the type of mortgage theory they use.
Since a defeasance clause conveys title upon satisfaction of the loan, these types of clauses are typically only used in title theory states where the bank holds ownership of the home until the mortgage is paid off. Over half of the states in the U.S. use title theory, including:
- The Northeast: Massachusetts*, New Hampshire*
- The South: Alabama*, Georgia, Mississippi, North Carolina, Tennessee, Texas, Virginia, West Virginia
- The Midwest: Idaho, Michigan*, Minnesota*, Missouri
- The West: Arizona, California, Colorado, Nebraska, Nevada, Oregon, South Dakota, Utah, Washington (state), Wyoming
Alaska and Washington D.C. also fall under title theory. The states with an asterisk are also intermediary states. All of the rest in the U.S. not listed above are lien theory states.
The Bottom Line
Defeasance clauses aren’t scary, and they aren’t even typically necessary in most states. But if you do live in a title theory state, your mortgage loan terms will likely come with a defeasance clause in the fine print.
If you live in a title theory state, you want the defeasance clause language in the loan terms. It is to your benefit because it simply states that once you’ve paid off the loan in full, you then get full and clear title (ownership) of your home.
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