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Assignment of Rents – What, Why, and How?

Let’s dive into a playbook every seasoned investor and lender should have at their fingertips: the Assignment of Rents (AOR). It’s like having a backup quarterback ready to take the field when the starter falters. Almost every commercial loan today includes an AOR as part of the Deed of Trust or Mortgage. But what exactly is an AOR, why is it such a powerful tool in your arsenal, and how do you enforce it when the time comes?

What is an Assignment of Rents?

Imagine this: You’re the coach of a football team. The game plan is solid, but suddenly, your star player—your borrower—gets sacked by financial trouble. What do you do? You activate your secret weapon: the Assignment of Rents.

An AOR is like a security blanket for lenders. It grants the lender a security interest in the income generated by the property—leases, rents, profits—essentially all the cash flow that property produces. If the borrower defaults, the lender can step in and collect those rent payments directly from the tenants. But, for this play to work, the lender’s interest needs to be perfected. The AOR must be in writing, executed by the borrower, and recorded with the county where the property is located. The simplest way to cover all bases? Include the AOR in the recorded Deed of Trust or Mortgage.

Why is an AOR So Important?

When your borrower fumbles and defaults on the loan, foreclosure isn’t always the best option. It’s like throwing a Hail Mary—high risk, high cost, and a long wait. But with an AOR, you’ve got a shorter timeline and lower costs. It’s a quick way to get back on track without taking ownership of the property, managing it, or going through the hassle of trying to sell it just to recoup your investment.

Think of the AOR as a way to get back into the game quickly. It lets you tap into the property’s cash flow, helping you recover funds and potentially bringing the borrower out of default. But here’s the kicker: you’ve got to keep an eye on how much you’re collecting. If the borrower’s debt is cleared, you stop collecting. Simple as that.

How Does Enforcement Work?

Enforcing an AOR is like calling the right play at the right time. It can even motivate the borrower to come to the table and work out a deal, especially if they rely on that rental income to cover their own expenses. Most borrowers won’t want to risk losing that income stream, so they’re more likely to negotiate and protect their investment.

But, just like any good coach, you’ve got to be careful. That rental income often covers essential expenses—property management, maintenance, taxes. If those bills fall behind, the property value could take a hit, liens could pile up, or the property could fall into disrepair. That’s bad news for everyone. Also, know the rules of the game—some states require the lender to pay certain property expenses out of the collected rents if the borrower requests it.

California’s Game Plan for AOR Enforcement

In the golden state of California, enforcing an AOR is all about strategy. California Civil Code §2938 lays out four ways to enforce an AOR:

Appointing a Receiver: Think of this as bringing in a new head coach to take over the team. A court-appointed receiver manages the property, collects rents, and ensures the playbook is followed. It’s not the easiest option since it involves the courts, but it’s effective, especially when borrowers or tenants aren’t playing ball.
Obtaining Possession of Rents: This is like intercepting the ball. The lender takes actual possession of the rents and applies them directly to the loan.
Delivering a Written Demand to the Tenant: Sometimes, a simple written demand to the tenant is all it takes to redirect the rental payments from the borrower to the lender. It’s a pre-litigation option that avoids the high costs and slow pace of court proceedings.
Delivering a Written Demand to the Assignor: Similar to the third option, but this time, the demand is sent to the borrower, instructing them to hand over the rental income.

These options allow you to enforce your AOR without running afoul of California’s One Action Rule or the Anti-Deficiency Rule. It’s a strategic way to keep the ball in your court and score a win for your investment.

Conclusion: Keep the Playbook Handy

Whether you’re gearing up to originate a new loan or dealing with a borrower’s default, knowing the ins and outs of an Assignment of Rents is crucial. It’s your go-to play when foreclosure isn’t the best option. And when executed correctly, it can even foster a better relationship with your borrower. Remember, just like in football, it’s not just about the big plays—it’s about knowing when to call the right one.

Daniel Zabala, MBA, MSF

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Properly Enforcing an Assignment of Rents

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In Florida, lenders typically obtain an “assignment of rents” if the property produces income by collecting rent, such as an apartment complex, rental home, rental space, or office building. An “assignment of rents” allows the lender to collect the rent payments, if the borrower defaults on their loan payments. Although the lender and borrower may agree to the assignment of rents in the loan documents, the procedure for enforcing the assignment of rent is governed by Section 697.07, Florida Statutes .

assignment of rents enforce assignment of rents actual assignment of rent sequestration of rents

The Assignment of Rents Should be Recorded

If a lender and borrower agree to the assignment of rents as security for repayment of debt in a mortgage document, the lender will hold a lien on the rent payments. However, to perfect its rents lien against third parties, the lender must record the mortgage in the public records of the county in which the real property is located. Fla. Stat. § 697.07 (2).

How Can a Lender Enforce the Assignment of Rents?

Section 697.07 provides two methods for the lender to enforce the assignment of rent: (i) the actual assignment of rent to the lender, and (ii) the sequestration of rents into the court registry. Wane v. U.S. Bank, Nat’l Ass’n , 128 So. 3d 932, 934 (Fla. 2d DCA 2013) (“Section 697.07 draws a clear line between a motion seeking sequestration of rents into the court registry [under subsection (4)] and a motion seeking an actual assignment of rents to the lender pending foreclosure [under subsection (3)].”).

(i) Actual Assignment of Rent to the Lender

The first method, the actual assignment of rent to the lender, is provided in Section 697.07 (3). If the borrower defaults on the loan, the lender can make a written demand to the borrower to turn over “all rents in possession or control of the [borrower] at the time of the written demand or collected thereafter,” minus any expenses authorized by the lender in writing. Fla. Stat. § 697.07 (3). If the borrower does not turn over rent payments after the lender has made a written demand, the lender may foreclose on the rents lien and collect rent payments, without having to foreclose on the underlying mortgage. Ginsberg v. Lennar Fla. Holdings, Inc. , 645 So. 2d 490, 498 (Fla. 3d DCA 1994) (“[A]n assignment of rent creates a lien on the rents in favor of the mortgagee, and the mortgagee will have the right to foreclose that lien and collect the rents, without the necessity of foreclosing on the underlying mortgage.”).

To receive a court order for the actual assignment of rent, the lender will have to prove that there was a default, and that it made a written demand to the borrower to turn over rent payment. Wane , 128 So. 3d at 934. Additionally, an evidentiary hearing will be required.

(ii) Sequestration of Rent Into the Court Registry

The second method, the sequestration of rent into the court registry, is provided in Section 697.07 (4). This method can only be used if there is a pending mortgage foreclosure lawsuit. Unlike the first method, the lender does not have to prove that there was a default or make a written demand, and an evidentiary hearing is not required.

Either the borrower or lender may make a motion to the court for sequestration of rent into the court registry. Upon such a motion, a court, pending final judgment of foreclosure, may require the borrower to deposit the collected rents into the court, or in such other depository as the court may designate. The court must hear the motion on an expedited basis, and the moving party will only be required to show that there is a pending foreclosure lawsuit, and that there is a provision in the loan documents for the assignment of rent. Wane , 128 So. 3d at 934.

Moreover, a borrower cannot avoid sequestration of rents by raising defenses or counterclaims. Id. ; Fla. Stat. § 697.07 (4). In addition, the borrower will be required to submit records of receipt of rent to the court and lender, typically on a monthly basis throughout the lawsuit. The rents will remain in the court registry until conclusion of the foreclosure action.

To properly enforce the assignment of rents, the first thing lenders should do is record the assignment of rents in the public records of the county in which the real property is located. In the event the borrower defaults on their loan, the lender will have two options to enforce the assignment of rents: the actual assignment of rent to the lender (Section 697.07 (3)), or the sequestration of rents into the court registry (Section 697.07 (4)). If the lender is seeking the actual assignment of rent, the lender must send a written demand to the borrower to turn over the rent payments and provide proof of default. On the other hand, the lender may seek sequestration without proof of default or written demand. Showing the existence of an assignment of rents provision in the loan documents is sufficient to obtain sequestration of rents into the court registry.