Nomination under the Contract for Sale of Land

Written by Nagisa Takaki

A contract for sale of land essentially involves two parties, the vendor and the purchaser. However, for a variety of reasons, it can be practical or necessary to nominate a ‘nominee’ to complete a contract of sale for example:

• Someone who intends to purchase property is unable to attend at the signing of the contract

• Contract purchaser wants to nominate their company

• Someone who has purchased a property but unable to settle and find a nominee to step in etc..

Under the General Condition of the Law Institute Victoria (LIV), a contract expresses that the purchaser may no later than 14 days before the due date for settlement nominate a substitute or additional person to take a transfer of the land. The common law recognised the right of the named purchaser to nominate an alternative purchaser and / or co-purchaser.

A nomination is done by way of a nomination form which is usually prepared by the purchaser’s solicitor or conveyancer and signed by the purchaser and nominee.

Nomination by the purchaser creates a second contract between the purchaser and nominee however this is not a contract for the sale of land, rather it is an assignment of the purchaser’s rights under the contract of sale of land to the nominee.

The contract purchaser should be mindful of the few following points:

• Whether the contract of sale allows nominations, and in what timeframe. Under the general condition the purchaser nominates no later than 14 days prior to settlement however, any special condition which have been agreed to the timeframe.

• What documentation needs to be signed in order to validly nominate a nominee purchaser such as a standard nomination form, a deed of nomination that are specified in the special condition of the contract

• The nomination may attract payment of double stamp duty. This may be relevant whether the purchaser is making a profit from on-sale of the property such as the off-the-plan contract.

• The named purchaser remains personally liable for the due performance of all the purchaser’s obligations under the contract. This mean, the vendor remains entitled to enforce the contract against the purchaser. The nomination acts as the purchaser’s authority to the vendor to transfer the property to the nominee in fulfilment of the vendor’s duties under the contract.

This information provided in this article is general advice only. Should you have any queries, please do not hesitate to contact our office.