No, this isn’t an essay on Romeo and Juliette, although its possibly just a little less interesting.It is rather, an insight into the importance of getting names in a contract correct.
When buying or selling properties in QLD the first step is making sure that the parties are who they say they are and being accurate on the contract. This can be done several ways, checking photo ID or doing a search of ASIC for companies. If in doubt, people should be sent to seek either financial or legal advice to make sure things are accurate as, if not, there may be significant expenses or liabilities.
The most important step any person should take before drafting a contract is to order a Title Search from the Department of Natural Resources. This document will advise you as to who the registered owner is. If the person you are dealing with has a different name, now is the time to ask why.
The most common reasons a Title wont match the name of an individual is as follows:-
1.Marriage
2.Divorce
3.Change of name
4.Death
In many instances, you should be able to proceed to contract with the registered name on contract, provided the individual can show they are the prison registered, typically by providing the document that changed their name (marriage certificate etc). Should a party have passed away however, the names on the contract will be required to be changed and this will involve the assistance of a Solicitor.
Should the situation arise where the name on the contract is incorrect, and it is not as straightforward as a change of name of a party, a Deed of Rescission and New Contract will be required. Unfortunately, there is never a guarantee that the other side will agree to this process and, if they don’t, there may be significant extra work to attempt to register the contract into the correct parties name before settlement happens or, in the worst case, the Seller may lose the contract and potential be exposed to an action for damages.
The last element of names when entering into a contract is making sure they are accurate and complete. It is never advisable to take a short cut when putting in the name of either the Seller or the Buyer. A Company as Trustee for example, should not use the initials ATF in place of a full description of the Trustees name as it always carries the risk that the entity isn’t correct.
Ultimately the rules of names are as follows:-
1.Always be complete
2.Always check ID or documents
3.If in doubt, always ask the question
As always, should you have any questions or concerns, please don’t hesitate to contact the Team at Conveyancing Connection.
