Opting Out of Standard Deed of Trust Rules
Most deeds of trust secure a home loan or similar debt. Title 33, Chapter 6.1 governs how those deeds work. This includes rules for trustee sales, notices, and redemption rights.
Not every deed of trust is created for a standard lending purpose. Sometimes real property is held in trust for reasons beyond securing a loan.
When a deed of trust serves a purpose other than securing a contract, the parties can agree to opt out of the standard rules.
If a trust deed is executed for a principal purpose other than or in addition to securing the performance of a contract or contracts, the parties thereto may agree that the provisions of this chapter shall not be applicable. If such an agreement is in writing and is contained in such trust deed the provisions of this chapter shall not be applicable to such trust deed.
A.R.S. § 33-819What This Means in Practice
The opt-out agreement must be written directly into the deed of trust. A side letter or verbal deal will not satisfy the statute.
If the written agreement is included, the parties operate outside the standard framework. They rely on whatever terms they negotiated in the document itself.
This rule typically applies to complex commercial deals or development agreements. For most residential homeowners, the standard deed of trust rules will apply.
How This Affects Families
During estate settlement, families sometimes find deeds of trust with unusual terms. A deed of trust on file with the county recorder might contain an opt-out clause under this statute.
If so, the standard rules about notices, trustee sales, and borrower protections may not apply. The rights and duties under that document could differ from a typical deed of trust.
If a family member moved real property into a revocable living trust, this statute usually does not apply. Standard residential deeds of trust secure a loan. The exemption only applies when the deed serves a different main purpose.