Question:
Is it proper to use the maiden name of a married woman, because the property was originally acquired in that name?
Answer:
Assume Mary Smith purchased the property and subsequently married James Brown, and changed her name to Mary Brown. She’s NOW “Mary Brown”. That’s it.
As an agent you have to FINTRAC her as “Mary Brown”. The only issue is that one year ago, ten years ago or forty years ago, she used the name “Mary Smith” and that’s what would show up on a GeoWarehouse search. But, what about Executions?
The Buyer’s lawyer needs to check under the name of “Mary Brown” because that’s where they all will be. That’s a public search. It’s not registered against the title to the property. The Buyer’s lawyer needs to know this. Hopefully, the Seller’s lawyer will either change the title to “Mary Brown” or will provide a copy of an Affidavit indicating that she is “one and the same”.
If the only name on file is Mary Smith, and if Mary Smith doesn’t say anything, the conveyance could be made from Mary Smith. That would be fine, but what about the “Mary Brown” executions? They still apply, no matter what! It’s just that no one searched for them because no one knew the new name.
Before we get to the issue of title insurance, who was the ONLY person who had a file which indicated “Mary Brown”? It could be just the real estate agents. Too bad they kept that information to themselves and didn’t tell anybody!
Agreement of Purchase and Sale
In the Agreement of Purchase and Sale, consider the following:
Description of Seller
Mary Brown (formerly Mary Smith)
Mary Brown (nee Mary Smith)
Mary Brown (also known as Mary Smith)
Disclosure in Agreement
“The parties acknowledge that the title to the property is registered in the name of Mary Smith, who is one and the same person as the Seller, Mary Brown.”
Resolution
It is necessary to get the name of Mary Brown “on the table” so that it is not overlooked. There’s actually no correct way of handling this. Most of the time, people prefer to be addressed by their correct legal name.
There are circumstances when a married woman will use two names: one at work, and the other at home. It would still be important to note the “at home” name since an execution could be registered in ether name. The point is to ensure that both names are known and identified so that an execution search may be conducted.
Brian Madigan LL.B., Broker