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A.R.S. § 33-702

How Arizona Defines a Mortgage and What That Means

Verified April 4, 202657th Legislature, 1st Regular Session

A mortgage is any transfer of a real property interest made solely as security for another obligation. If a property transfer is really just collateral for a debt, the law treats it as a mortgage regardless of how the paperwork is labeled. Mortgages and trust deeds can include assignments of rents and income.

Title 33, MORTGAGES

azleg.gov

Substance Over Labels

What makes something a mortgage is not the title on the document. It is the purpose behind the transfer. Any transfer of a real property interest made only as security for another act is a mortgage loan under the law. If the transfer was subject to being undone once the obligation is met, that fact can be proven in court.

Every transfer of an interest in real property, other than in trust, or a trust deed subject to the provisions of chapter 6.1 of this title, made only as a security for the performance of another act, is a mortgage.

A.R.S. § 33-702(A)

This protection prevents lenders from disguising a loan as an outright sale. If someone "buys" your property but the real arrangement is that you get it back once you pay off a debt, the law treats that transaction as a mortgage. All borrower protections apply, regardless of the loan amount or the interest rates involved.

Rent and Income Assignments

This statute also addresses what happens with rental income from mortgaged property. A mortgage or deed of trust can include a provision assigning the borrower's interest in leases, rents, and income to the lender. That assignment can take effect before, during, or after a default.

If the borrower defaults on a mortgage payment, the lender can enforce the assignment in several ways. The lender may request a receiver, take possession of the property, collect rent directly from tenants, or seek a court order. Neither the borrower's credit score nor the adequacy of the collateral limits these remedies.

For families who own rental property, understanding how mortgage terms affect rental income is important. A loan originator may include rent assignment language in your home loans without drawing attention to it. Reviewing these terms before signing helps you understand what happens if payments fall behind.

Across the United States, definitions of what counts as a mortgage vary by state. Under Arizona law, the focus is on purpose, not labels. If the transfer secures an obligation, it is a mortgage, and the borrower keeps the protections that come with that classification.

33-702. Mortgage defined; admissibility of proof that transfer is a mortgage A. Every transfer of an interest in real property, other than in trust, or a trust deed subject to the provisions of chapter 6.1 of this title, made only as a security for the performance of another act, is a mortgage. The fact that a transfer was made subject to defeasance on a condition may, for the purpose of showing that the transfer is a mortgage, be proved except against a subsequent purchaser or encumbrancer for value and without notice, notwithstanding that the fact does not appear by the terms of the instrument. B. A mortgage or trust deed may provide for an assignment to the mortgagee or beneficiary of the interest of the mortgagor or trustor in leases, rents, issues, profits or income from the property covered thereby, whether effective before, upon or after a default under such mortgage or trust deed or any contract secured thereby, and such assignment may be enforced without regard to the adequacy of the security or the solvency of the mortgagor or trustor by any one or more of the following methods: 1. The appointment of a receiver. 2. The mortgagee or beneficiary taking possession of the property, or without the mortgagee or beneficiary taking possession of the property. 3. Collecting such monies directly from the parties obligated for payment. 4. Injunction.

This page provides general legal information about Arizona statutes and is not legal advice. For guidance on how this law applies to your situation, speak with a qualified attorney.

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