What’s in a name?

27 May, 2016

 

Why the spelling of your name is critical when buying & selling property.

 
Quite often here at Apple Settlements, we come across buyers & sellers’ names that are incomplete, incorrect or otherwise different from their ID and other documents. The spelling of your name is critical when buying or selling property, as discrepancies can result in delays in settlement.

There are many reasons for the inconsistencies, however the most common situations we’ve encountered are:-

  1. Marriage (or breakdown of marriage) where a seller has changed their name since purchasing the property;
  2. Anglicised names (which buyers & sellers may commonly go by in day to day life) are not always the same names as reflected on their legal ID documents.
  3. Missing middle names, which the buyer or seller may not use all the time, accidentally being omitted from the Contract of Sale.
  4. Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased a property or data entry errors made by Landgate

 
The Western Australian Registrar and Commissioner of Titles at Landgate in WA have a Joint Practice: Verification of Identity in place. This Practice requires the settlement agent for the seller of a property as well as the mortgagee for the buyer to identify their client, using a strict set of ID requirements. It is expected that settlement agents will also be required to identify all buyers under the same Practice in the near future.

If your name on each of the ID documents used does not match your name on the Contract of Sale (for buyers & sellers) and/or the Certificate of Title Deed (for sellers), further work is required by your settlement agent to verify your identity and ensure that the transfer of ownership is completed using your true and correct legal name.
 
The ID requirements for persons located within Australia are as follows:-

Landgate ID Requirements

Different requirements apply to persons whose verification of identity takes place overseas. Please check with your conveyancer, if you think this may apply to you.
 
Office of State Revenue also requires that the buyers’ names on the Contract of Sale and Transfer of Land document match (which in turn must also match the mortgage document that the bank prepare, and complete the Verification of Identity on).
 
It is important to note that settlement cannot take place until your identity has been successfully verified by your conveyancer and/or your bank.
 

Now that we have established the reasons why consistency and accuracy is required when buying or selling your property, how can we fix these errors or account for name changes that may arise?

 
Whilst an error, such as a middle name being omitted on the Contract of Sale, may seem minor and easily fixed, the Contract of Sale is a legally binding document and cannot simply be altered. Instead, the Real Estate Agent will need to draw up a Variation of Contract, which will acknowledge the true and correct name in question. All buyers & sellers will then sign the Variation to accept the amendment, and the Variation document will then form part of the Contract.

Variations of Contract can also be used to clarify the order of names, where anglicised names have been written incorrectly on the Contract of Sale.
 
Where a seller’s name has changed in the time since they purchased the property, e.g. due to marriage or where they’ve reverted to their maiden name (in the case of divorce) or changed their name by deed poll, a Statutory Declaration is used. The declaration will tell the story of the name change (i.e. that the person used to be known as one name, an event such as the marriage or divorce occurred, and that as a result, they are now known by the new name).
 
In these cases, evidence of the name change is required to accompany the declaration, such as your marriage certificate, change of name certificate or birth certificate. Your settlement agent will retain your original certificate, and have a copy of it certified at Landgate, before returning it to you. If posting these precious documents, Apple Settlements does so via registered mail for extra peace of mind.
 
It is important to know that the commemorative certificates issued for birth and marriage are not acceptable evidence of your name change. You will need to obtain your formal certificate from Births, Deaths & Marriages in Perth CBD. Alternatively, your local court-house may also be able to print the certificate for you. See http://www.bdm.dotag.wa.gov.au/O/other_locations.aspx for more information on locations near you.
 
For discrepancies between a seller’s legal name and the Certificate of Title deed, where the seller didn’t notice the spelling error at the time they purchased the property a Statutory Declaration will be required to evidence that they are one and the same person. Your settlement agent will determine the appropriate circumstances in which a Statutory Declaration can and should be used.
 
Spelling errors and other avoidable discrepancies can cause undue delays in the settlement process and so it is very important that you ensure that your full & correct name is used on all documentation in the settlement process. When writing up the Contract of Sale, all buyers & sellers should take care to ensure that their name, as written on the contract is written exactly as their true & correct current legal name. For sellers who’ve changed their name since purchasing the property, your conveyancer will see that the name on the contract differs from the title deed, and prompt them to prepare the necessary declaration for you.
 
As always, if you’re unsure about how to tackle a name change or discrepancy, be sure to call your friendly conveyancer, at Apple Settlements.
 
The information contained in this blog is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from your Conveyancer.