ACT GOVERNMENT Land Titles Modernisation Land Titles Electronic

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ACT GOVERNMENT Land Titles Modernisation Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 Electronic

ACT GOVERNMENT Land Titles Modernisation Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 Electronic Conveyancing National Law (ACT) Act 2020

Land Titles Modernisation in the Legislative Assembly The Legislative Assembly passed the Bills on

Land Titles Modernisation in the Legislative Assembly The Legislative Assembly passed the Bills on 7 May to come into force on 1 June. 1. The Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 repositions the current land titling laws so that they are less paper based and provide scope for electronic conveyancing. 2. The Electronic Conveyancing National Law (ACT) Act 2020 will allow conveyancing to occur electronically in the ACT, through adoption of the Electronic Conveyancing National Law.

Legislative Framework

Legislative Framework

How will this be done? Land Titles (Electronic Conveyancing) Legislation Amendment Act • A

How will this be done? Land Titles (Electronic Conveyancing) Legislation Amendment Act • A series of changes to land titling laws such that the certificate of title isn’t a pre-requisite to dealing. • Electronic confirmation of registration • Stronger protections against fraud – the Registrar-General must not register unless broadly, we know the person who is wishing to transact on the property is entitled. • Changes to lodgment requirements and pre-exchange processes

How will this be done? • The legislation provides the framework for stronger protections

How will this be done? • The legislation provides the framework for stronger protections and creates the capacity for disallowable rules and guidelines from the Registrar-General. • New norms where identity and authority to deal is verified. • This is broadly the approach taken in the E-Conveyancing National Law and other jurisdictions which also provide for inperson settlements and lodgments. • BVD/SVD requirements remain unchanged.

Confirmation of Registration

Confirmation of Registration

Certifications and Forms • Certifications are statements made by the ‘certifier’ that they have

Certifications and Forms • Certifications are statements made by the ‘certifier’ that they have undertaken particular actions before lodgment. • There are five different certification requirements: – – – Verification of Identity (Categories 1 -5) Client Authorisation Form Supporting Evidence Document Correctness of Document (with all legislation and requirements) Mortgagee Verification of Identity of Mortgagor. • Certification requirements will vary based on the transaction type and party role. • By certifying the document for lodgment, there is no requirement for the lodging party to produce the certificate of title, have the party to the instrument execute the document and there are no witnessing requirements if certifications are given.

Certifications and Forms • New forms are being prepared to include the relevant certifications

Certifications and Forms • New forms are being prepared to include the relevant certifications for that form. • Front information page updated with certification requirements. • Certifications lodgment guide

Verification of Identity • VOI is a process carried out to ensure that a

Verification of Identity • VOI is a process carried out to ensure that a person is who they claim to be. • Verification of Identity Rules • A representative must take reasonable steps to verify the identity of their Client who will be party to the instrument • The mortgagee must take reasonable steps to verify the identity of each mortgagor. • Reasonable steps requirement is met by applying either the Verification of Information Standard, roughly a 100 points ID check and a face to face interview, or verifying identity in some other way that is reasonable. • Mere mechanical compliance with the standard with attention to detail is not sufficient – Identity Agents can be used

Verification of Authority • To comply with the Verification of Authority Guidelines, the legal

Verification of Authority • To comply with the Verification of Authority Guidelines, the legal practitioner, or mortgagee must take “reasonable steps” to verify that the person is authorised to deal with that property interest. • The verification will, in each case, require inspection of supporting documents that link the person to the land which is being conveyed. – Represented parties certify the person is authorised to deal. – Self-represented parties will need to bring documents to the Land Titles Office for inspection that link them to the land being conveyed. – Documents used by a legal practitioner to verify a person’s authority must be retained for at least seven years from the date the instrument is lodged with the Land Titles Office.

Verification of Authority – Consent to Register The titles office has deciphered that Form

Verification of Authority – Consent to Register The titles office has deciphered that Form 042 -Consent will only be required for the following if lodged by a legal practitioner/mortgagee. DCL - Determination/surrender of a crown lease Further mortgages will require consent of the first registered mortgagee In the case of subleases - if a fixed Title is already been produced to the Land Titles office in order to allow lodgement of dealings and is Permanently Produced, this will still be valid. A ‘standing consent’ option will be added to the form. Self-Represented Parties will require consents for more dealing types. These are detailed in the Certifications Lodgment Guide.

Verification of Identity & Authority – Companies • When the person being identified is

Verification of Identity & Authority – Companies • When the person being identified is a company, the identity verifier is to: – confirm the existence and identity of the company by conducting a search of the records of the Australian Securities and Investments Commission or other regulatory body with whom the company is required to be registered – take reasonable steps to establish who is authorised to sign or witness the affixing of the seal on behalf of the company – verify the identity of each individual signing or witnessing the affixing of the seal on behalf of the company in accordance with the Verification of Identity Standard as if that individual is themselves a person being identified.

Client Authorisation Form • Client Authorisation is required for in-person and electronic lodgments where

Client Authorisation Form • Client Authorisation is required for in-person and electronic lodgments where there is a representative. • Role of the Client Authorisation Form? – The representative is authorised to undertake the transaction on behalf of their client and with it, we move away from need for clients to sign further forms that are witnessed and then executed by the lawyer. – The Client Authorisation Form is provided in the Verification of Authority Rules and in the Model Participation Rules – The Client Authorisation Form provided in the Verification of Authority Rules has links to the ACT Government privacy statements – Client Authorisation forms to be in Substantial compliance

Power of Attorney – Party to the instrument • The Power of Attorney process

Power of Attorney – Party to the instrument • The Power of Attorney process will continue as no changes are proposed • The attorney takes on the role of the party to the instrument • When the Person Being Identified is an Attorney, the Identity Verifier is to: – confirm from the registered Power of Attorney, or the unregistered Power of Attorney intended to be lodged in series with the Registry Instrument, the details of the Attorney and the Donor; and – Take reasonable steps to establish the Registry Instrument is authorised by the POA – Verify the identity of the attorney in accordance with the VOI rules

Self-Represented Parties • The same norms, of the need to verify identity, apply to

Self-Represented Parties • The same norms, of the need to verify identity, apply to self-represented parties as much as they do to represented parties. • Key differences: – A self-represented party will need to see a Justice of Peace, lawyer, notary public or identity agent to have their identity verified; – Execution of the instrument to be witnessed – present the identity certification to the Land Titles Office and a copy of the documents certified by the person conducting the evidence – Right-to-deal evidence linking the party to the land may be required to be produced – Mortgagee/Encumbrancee consent maybe required

Self-Represented Parties – Identity Flowchart

Self-Represented Parties – Identity Flowchart

Transitional Arrangements • ‘Old’ forms will still be accepted for the next 3 months

Transitional Arrangements • ‘Old’ forms will still be accepted for the next 3 months • If using an old form then the requirements of that form must be used. Certifications are not required if an old form is being lodged, instead the old requirement of an accompanying Certificate of Title must be met (“old form, old process”). • Due to the fact that the mortgagee on Title holds the CT but lacks visibility of whether the other parties in a Discharge/Transfer/Mortgage (Legal Practitioner with Transfer and Incoming mortgagee with Mortgage) will be using a new or old form, the CT must always be provided for a paper Settlement. • If a CT is required the application for CT process will continue as a process if needed • Productions will no longer be registered

E-Conveyancing • Initially Discharge, Transfer, Mortgage to be available in PEXA. Target date is

E-Conveyancing • Initially Discharge, Transfer, Mortgage to be available in PEXA. Target date is July/August • Initially propose to have standalone transactions then refinances and four-party settlements soon thereafter • Further dealings to be incrementally added • PEXA will provide support and training and will manage onboarding • Subscribers need to be registered in the ACT

Compliance • Compliance – Section 33 of the ECNL provides the Registrar in each

Compliance • Compliance – Section 33 of the ECNL provides the Registrar in each jurisdiction with the power to audit compliance with the Participation Rules • A Subscriber is obliged to cooperate fully – The ACT will incorporate the national framework – Similar provisions are being brought across to in-person lodgments – ARNECC Guidance Note on approach to compliance

Next steps • New forms now being put online • Use of ‘old forms’

Next steps • New forms now being put online • Use of ‘old forms’ must meet the requirements of that form • Ongoing review of FAQ’s and guidance material as transactions start to come through the new process – – Settlement Lodgment Matrix Certifications Lodgment Guide Self-Represented Document Checklist and Document Pack VOI on a page • Introduction of E-Conveyancing • Phase out old forms