Can you Change the Purchaser on a Contract of Sale?

KEY TAKE-OUTS

• Why the need to change the purchaser
• Can a purchaser be changed?
• What is a transfer in non-conformity?
• What is a formal rescission?
• Conclusion

Changing the Purchaser on a Contract of Sale

A question that is becoming more and more common is whether is: “Can you change the purchaser after a Contract of Sale has been exchanged unconditionally?” Whilst this question may seem to have a yes or no answer it is not that simple, and the answer can depend on many outside variables.

When can you reassign a contract?

The instances in which there may be a need to alter the purchaser include but are not limited to the following:

1. Where a property is purchased at auction by one party and then later on it is discovered in order to get the loan that it needs to also be in a spouse’s name or even another family member. This scenario is problematic because where a property is purchased at auction the purchaser waives their right to a cooling off period and is bound by the contract of sale from the moment of signing risking the 10% deposit;
2. A parent signing on behalf of a child that is away and the child needing the contract to be solely in their name;
3. Where someone is under pressure at auction to sign and does so in their personal name or in the name of an entity that is not to be the registered owner of the property. This can lead to issues with Revenue NSW and stamping; or
4. Where a contract of sale for unregistered land is entered into and by the time the land is registered and the contract is to be completed the financial position of the purchaser has changed, leading them to need to add a third party as a purchaser.

The decision or need to change the purchaser’s name on a contract often happens after parties have discussed the purchase with their accountant, mortgage broker and/or solicitor and have realised an error has been made.

It seems a common belief that you can simply add someone to the contract or change the name of the person or entity. Doing so however in most cases will not work and will result in having to pay double Stamp Duty.

In New South Wales the basic rule is that the Purchaser who signed the contract of sale in the first instance should be exactly the same as the transferee on the Transfer to be registered with the NSW Land Registry Services.

Two Ways to Change the Buyer’s Name on a Contract of Sale

1. Transfer in Non-Conformity

In particular scenarios, the Duties Act in NSW does in fact allow the ultimate registered owner to be different than that on the contract of sale at the time of signing but only in the instances where the purchaser and transferee fit into the definition of ‘related persons’ both when the contracts were exchanged and at the time of settlement. This is known as a transfer in non-conformity.

The Duties Act NSW 1977 Section 18 (3) says:

If a transfer is not in conformity with an agreement, a $10 duty will still be payable if the transfer would have been in conformity but for the transferee not being the purchaser under the agreement, provided the purchaser under the agreement and the transferee under the transfer were related persons at the time the agreement was entered into

This process attracts an additional $10.00 fee however this pales in comparison to the fees attracted by a mutual recission and re-entering into the contract of sale.

The definition of ‘related persons’ includes:

• spouses (including de facto);
• parent;
• child;
• siblings;
• related private companies (as per the Corporations Act);
• a private company and a natural person who is a director or majority shareholder of that company;
• a trustee of a trust and a natural person who is a beneficiary of the trust; or
• a private company and the trustee of a trust, if the company, or a director or majority shareholder of the company, is a beneficiary of the trust.

Whilst this may seem like a great solution for most the issue becomes whether or not a bank will be acceptable. Banks may have trouble processing a loan where one party to be listed to a mortgage is not listed on the front page of the contract. In a scenario like this whilst the ultimate result is that all parties end up on title a bank often need more to be able to process the mortgage prior to settlement.

2. Formal Rescission

Where parties are not related the purchaser/transferee can only be amended by formal rescission of the original Contract and re-entering into a new Contract in the name of the correct purchasers.

In this scenario both parties will need agree to the recission and sign a mutual recission document. It is more likely than not that the purchaser will have to pay all additional legal expenses to be incurred by the Vendor. It is also likely that for most firms that a rescission will fall outside of the scope of a normal conveyance incurring additional fees.

It is important to get correct legal advice in relation to a deed of recission as there are important areas that need to be addressed. This includes the protection of the 10% deposit which will have already been paid.

Conclusion

You may not always be allowed to change the buyer on your contract after it has been unconditionally exchanged. Therefore, it is extremely important when looking at buying a property that you have spoken to both a solicitor and an accountant or mortgage broker, so that you are aware of what you are entering into at the time of signing the contract of sale.