This presentation discusses various aspects of provisions in deeds of trust that deal with recourse versus non-recourse liabilities and so-called carve-out provisions imposing liability in an otherwise non-recourse context. A sample non-recourse carve-out provision is attached as Appendix A, but there is a great variety of provisions which lenders and borrowers negotiate on a regular basis. It should be noted that the author represents borrowers and guarantors almost exclusively. Consequently, although an effort has been made to be relatively even-handed in discussing particular issues in this presentation, the remarks inevitably reflect the author’s perspective.

This article addresses some of the issues which may arise among a borrower and two lenders in a situation where the lenders are both providing financing to the borrower for an individual real estate transaction.