From Monday 4 July 2016 the Real Property Act 1886 will be amended to implement changes to align the process for registration of instruments with the requirements of electronic conveyancing.
The changes expand on existing processes as well as introduce new processes relating to identifying parties, to reduce the risk of fraudulent dealings being registered.
Please be mindful of the below requirements, as there will be implications in terms of timing and administration. Click here to view a factsheet prepared by the LTO which provides a helpful overview of the changes.
The amendments generally relate to:
- Client Authorisations: A new requirement to authorise legal practitioners and conveyancers to execute and lodge conveyancing instruments on behalf of their client;
- Verification of Identity (VOI): Requirements have been expanded to apply to all conveyancing instruments;
- Verification of Authority (VOA): New requirements have been introduced;
- Duplicate (Paper) Certificates of Title will become obsolete; and
- Conveyancing transactions will be able to be completed electronically using ‘e-conveyancing’.
Below is a brief summary of the changes that you will need to be aware of.
Parties to conveyancing transactions will no longer execute their own conveyancing instruments. Instead, under a valid Client Authorisation, the party’s legal practitioner or conveyancer will be authorised to:
- Sign conveyancing instruments on behalf of their client;
- Lodge conveyancing instruments with the Land Titles Office; and
- Authorise or complete financial aspects of the conveyancing transaction.
A practitioner can only rely on a Client Authorisation PROVIDED THAT they have also undertaken VOI and VOA of their client (see below).
Verification of Identity
The requirement to verify the identity of clients who are parties to real property transactions was previously confined to a small number of instruments. From 4 July 2016, the VOI of persons entering into conveyancing transactions will be required in all cases where an instrument will be lodged with the Land Titles Office.
In summary, practitioners and mortgagees must “take reasonable steps” to identify the person being identified by:
- Conducting a face-to-face interview;
- Citing all of the identity documents from one of the Categories of identity documents (listed in Appendix B of the VOI Requirements);
- Being satisfied that those documents are authentic and identify that person; and
- Being satisfied that photographs produced are a reasonable likeness to that person.
Further steps may be required if the verifier is not satisfied.
Verification of authority
A legal practitioners, conveyancers and mortgagees must also verify the authority of their client to be a party to that instrument.
Verifying a person’s authority to enter into a transaction dealing with property requires the inspection of supporting documents that connect the person to the land being dealt with.
Copies of all materials supporting the VOI and VOA are to be retained for 7 years from the date of lodgement of the relevant instrument.
Certificates of title
Duplicate (or paper) Certificates of Title have been removed entirely from the Real Property Act and will cease to be of any effect from 4 July 2016. CTs and original Crown Leases will no longer be required to be lodged with instruments for registration.
Any titles lodged with the LTO after 4 July will be securely destroyed by the LTO.
In addition, it will no longer be required (or possible) to lodge duplicate instruments such as mortgages, leases or encumbrances. Rather than being provided with a registered copy of instruments, parties will receive a Confirmation of Registration Notice.
A transitional period of 4 months will apply to deal with work-in-progress and an extended transitional period of 12 months applies to Mortgages and Discharge of Mortgage.
During the transitional period parties must fully comply with either:
- The existing legislative requirements in place prior to the commencement of the amendments;
- The new legislative requirements introduced with the commencement of the amendments to the Real Property Act; or
- A combination of the above (ie, where one party uses a client authorisation and the other party uses the existing arrangements).
This article was written by Lisa Jennings, Solicitor and Damien Foulis, Partner.