There has been much talk in conveyancing circles about “and/or nominees” over the years. But what does it mean and how important is the nominee clause in contracts of sale here in South Australia? Read on to find out.
Overview:
- What does “and/or nominees” mean?
- Is the “and/or nominee” clause required in South Australia?
- Letter of Nomination/Letter of Agency
- Deed of Nomination/Assignment
What does “and/or nominees” mean?
The intention of stating “and/or nominees” in the contract is to permit the option to nominate another person to purchase the property in addition to the person signing the contract – or even another person entirely.
“And/or nominee” clause in South Australia
In South Australia, contracts for sale of property don’t need to include “and/or nominee(s)”.
For decades, Revenue SA and its predecessors were pedantic whenever the transferee on our transfer was different from the purchaser named on the contract.
However, a ruling back in 2015 meant that a complete 360 occurred on the issue, effectively removing the need for real estate agents to continue the practice of including ‘and/or nominee(s)’ after the purchaser’s name on a contract.
Long gone is the need for a Letter of Nomination or Letter of Agency
A Letter of Nomination is no longer required in South Australia if the purchaser who signed the Contract of Sale wishes to direct that someone additional or in replacement of themselves be nominated as the purchaser on the transfer at settlement.
Revenue SA now takes the position that it doesn’t care whether the entity on the contract is different from the entity on the transfer.
This change of heart back in 2015 seemed to hinge on this legal insight:
Revenue SA has advised that the purchaser has a common law right to direct the vendor to transfer the property to any entity it desires without the requirement for any further documentation.
As a result of these changes, conveyancers no longer need a Letter of Nomination/Letter of Agency in any circumstances.
Of course, at Eckermann Conveyancers we will always confirm with the purchaser the exact entity that is buying the property before we prepare transfer documents, even if an agent has still written ‘and/or nominee’ or not.
Some incoming banks want to see the document that links the purchaser on the contract to the actual purchaser/transferee, in this situation we provide them with a ‘Confirmation of Purchaser’ document which we have both parties sign.
A restricted need for a Deed of Assignment
In transfers where the purchaser on the contract is a relative or related entity of the transferee, and no extra consideration is being paid, we no longer need a Deed of Assignment, Letter of Nomination or Letter of Agency.
However, when the transferee/assignee is a third party to the purchaser/assignor on the contract, and also where there is extra consideration being paid by the transferee/assignee to the purchaser/assignor, then there will still be a requirement to complete a Deed of Assignment.
In these situations, our team will make sure that full stamp duty is paid on both transactions, firstly from the vendor to the purchaser/assignor and then secondly from the purchaser/assignor to the transferee/assignee.
There are examples on the Revenue Ruling that go into further detail.
Out with the old (well for the most part)
Even though this change took place in 2015, we did notice a transition period where ‘and/or nominee(s)’ were still coming through from time to time on paperwork, while real estate agents changed habits forged over a lifetime.
Luckily, the old habit does not cause any issues, it’s simply a fragment of the way things were once done.
From what we’ve ascertained, when we do see the old “and/or nominees” pop up, it tends to be because so many purchasers and their accountants are entrenched with the old ways of needing to include “and/or nominee(s)” on the contract.
And that’s where we come in, deep in the details, we check everything thoroughly and continue to apply the correct protocols as each situation requires.
So, whether you’re a first home buyer or property developer, trust Eckermanns to handle the transaction with skill and professionalism.
