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Registrar’s Requirements for paper instruments – an update

The Registrar’s Requirements for paper conveyancing transactions are now intended to be published in October 2015.  The date is yet to be confirmed.

The Registrar’s Requirements will facilitate the alignment of electronic and paper conveyancing and will include formalising the prudent practice of conveyancers and lawyers to take reasonable steps to verify a client’s identity and authority.

The requirements for paper instruments will be similar to those for Registry Instruments lodged in an Electronic Lodgment Network (ELN), as set out in the Participation Rules determined under the Electronic Conveyancing National Law (Victoria).  In turn, the Participation Rules are based on the Australian Registrars’ National Electronic Conveyancing Council’s (ARNECC) Model Participation Rules.  ARNECC has recently published Version 3 of the Model Participation Rules at http://www.arnecc.gov.au/publications/_model_participation_rules

Under section 106A of the Transfer of Land Act 1958 (TLA) the Registrar is authorised to determine requirements for paper conveyancing.  The following are the requirements determined under section 106A and the proposed dates on which each requirement is to take effect:

2015

On the day the Registrar’s Requirements are published

• Paper quality and printing requirements for paper instruments, and form of applications to the Registrar

9 November

• Verification of identity and authority for clients
• Supporting evidence retention

1 December

• Verification of identity of non-represented parties

2016

1 March

• Lodging parties for discharges

1 August

• Classes of instruments that must be lodged using an ELN – some discharges of mortgages and some mortgages must be lodged electronically

2017

3 April

• Certifications
• Client authorisations
• Certifications under section 74(1A) TLA

Land Victoria will provide customers with more details of the Registrar’s Requirements in the next Customer Information Bulletin.

New Forms guides and fees web page

Land Victoria has launched a new Forms, guides and fees web page, where you will find the most up-to-date forms for property transactions and dealings, grouped with their relevant guides and fee listings.

From the main Forms, guides and fees web page you can navigate to information and downloadable forms, listed by Act and key topic.

On the web pages for each Act, the information is presented in a grid so that transaction forms and their associated guides and fees can be seen at a glance. In some cases, there are also links to web pages with additional information about the various dealing types.

Land Victoria welcomes your feedback on these new pages as we endeavour to continually improve access to information.

The Forms, guides and fees web page is available at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees.

Please note: these web pages are the most current and accurate source of Land Victoria’s transaction forms, guides and fees.

Powers of Attorney Act 2014 – new requirements for general and enduring powers

Customers will be aware that the Powers of Attorney Act 2014 commenced on 1 September 2015. This Act repealed Parts XI and XIA of the Instruments Act 1958 and introduced new requirements for general and enduring powers of attorney. The Act also introduces supportive attorney appointments.

Since 2011, Land Victoria has not required copies of powers of attorney to be produced in some circumstances. Instead, Land Victoria required that the instrument signed by the attorney disclose that the execution was under a general or enduring power of attorney.  It is now a legislative requirement that instruments executed by attorneys are executed in a way that shows the attorney executes it as an attorney for the principal: see sections 12 and 27 Powers of Attorney Act 2014.

Land Victoria intends to continue its practice of not requiring copies of powers of attorney to be produced in circumstances where a standard execution clause is used, disclosing that the instrument is executed under a general or enduring power in a form authorised by Victorian law and of which the attorney has no notice of revocation. Land Victoria expects that the party submitting an instrument for registration executed under a power of attorney has made all necessary enquiries concerning the power and is satisfied that the execution is valid and within scope.

Below is an acceptable execution clause for general non enduring powers of attorney and enduring powers of attorney for financial matters or for financial and personal matters created after the commencement of the Powers of Attorney Act 2014.

Signed by [NAME OF PRINCIPAL] by being signed by [NAME OF ATTORNEY] pursuant to a General or Enduring Power of Attorney dated [DATE] which is in the form authorised by Victorian legislation and of which the attorney has no notice of revocation, in the presence of:

Land Victoria will update its interactive forms to accommodate these execution clauses. Until this is done, customers must use the ’other power of attorney’ execution option when signing instruments under a general power of attorney made after 1 September 2015. Customers must also produce a copy of the general power of attorney.

Customers can continue to use existing execution options for enduring powers of attorney made after 1 September 2015. A copy of the enduring power of attorney is not required in these circumstances. 

Land Victoria’s practices with respect to instruments signed under powers of attorney (a) entered into before 1 September 2015 and (b) on behalf of companies or other corporate persons continue to apply. In all other cases, a copy of the Power must be supplied.

Instruments executed under the following types of powers of attorney created under the Powers of Attorney Act 2014 will not be accepted for lodgement, as:

(a) Enduring attorneys for personal matters only – only an attorney for financial matters or for both financial and personal matters has power to deal with land or undertake a real estate transaction on behalf of a principal.

(b) Supportive attorney appointments – supportive attorneys are prohibited by section 89 of the Powers of Attorney Act 2014 from taking any action to give effect to a supported decision about a ‘significant financial transaction’. A significant financial transaction includes undertaking a real estate transaction or dealing with land on behalf of the principal.

Customers should note that the Registrar may call for the production of a power of attorney under section 104 of the Transfer of Land Act 1958 or further evidence in any case.

Lodgement of dealings by correspondence

From 1 January 2016, Land Victoria will cease to accept lodgement of dealings by mail from those customers who have a Victorian Online Title System (VOTS) Customer Code.  From that date, customers with a VOTS Customer Code will need to lodge dealings in person or through a lodging agent.

Image watermarks and page numbers

Customers will be aware that Land Victoria images all registered and recorded instruments and provides a print of an image to satisfy a search request.  Some documents presented to Land Victoria contain multiple pages and, typically, page numbering.  Some lodgements contain an application to register or record a document, accompanied by a copy of that document.  The document, if it contains multiple pages, usually also has page numbering.  When imaged, the application becomes page 1 and the first page of the accompanying document becomes the second page of the image.

Customers need to be aware that, when the print of an image is supplied to satisfy a search request, the image itself will contain details at the foot of the date and time the image is printed, together with page numbering and a total page count.  The page numbering will not always agree with the page numbering of the original document, for the reasons discussed above.  Reference to the image page numbering will confirm receipt of all image pages

Electronic conveyancing – signing electronic instruments

Customers are reminded of the importance of complying with the Participation Rules when submitting documents for lodgement using an electronic lodgement network (PEXA). Failure to do so could result in a Subscriber being suspended or terminated.

Unless a PEXA Subscriber is a Representative, the Subscriber can only sign electronic instruments on their own behalf. If the Subscriber is acting as a Representative they can only sign electronic instruments on behalf of their client.

Recently, a Subscriber acting on behalf of a registered proprietor received a paper withdrawal of caveat from the caveator’s legal representative. Instead of lodging this, the Subscriber signed and certified an electronic withdrawal of caveat, purportedly on the caveator’s behalf. What the Subscriber should have done in these circumstances is lodge the paper withdrawal of caveat or ask the caveator’s legal representative to submit an electronic withdrawal of caveat using PEXA.