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National Mortgage Form – All states

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New content added

New content on the National Mortgage Form has been added to the Mortgages Guides in each state.

The National Mortgage Form is an Australia-wide initiative. It standardises the content and presentation of mortgages lodged for registration via all lodgement channels with land registries in the various participating Australian states and territories.

Mortgagees and property practitioners across all participating jurisdictions must adopt the National Mortgage Form. The previous previous mortgage forms used in each Land Registry will no longer be accepted.

The National Mortgage Form allows for incorporation of any registered common provisions, or other registered dealings.

For further information, user guide and link to the current webform version of the National Mortgage Form, see the ARNECC website.

Compatibility with PEXA and Sympli

The Mortgage is created and registered within PEXA. For further information, see the PEXA Community user guides ‘How to create and register a mortgage in PEXA’ and ‘How to create and register a second mortgage in PEXA’. These are available on all By Lawyers Mortgages matter plans.

It is expected that the new Electronic Lodgement network Operator, Sympli, will have corresponding capability when it commences later this year. Details on Sympli will be added to by Lawyers guides as soon as Sympli becomes operational.

Electronic lodgement of leases – NSW

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From 10 December 2018 electronic lodgement of leases commences via PEXA.

Summary of the procedure for electronic lodgement of leases

The annexures to the Real Property Act lease form are prepared in the usual way outside PEXA and then uploaded for attachment to the RPA lease form in PEXA .

The RPA lease form is created in PEXA, the annexures attached and the lease document is then signed and lodged electronically.

A lease may be lodged electronically:

  • as a stand-alone registration;
  • in combination with a transfer of land; and
  • in a series with other leases.

Sub-leases, surrenders of lease and variations of lease are not yet available in PEXA. This functionality is expected mid-2019.

The Office of the Registrar General has granted a partial waiver of a subscriber’s obligations to comply with rule 1 of Schedule 3 – Certification Rules of the Model Participation Rules relating to verification of identity for lessors and lessees, in that there is no requirement to take reasonable steps to verify the identity of the parties. The waiver will continue until either the Model Participation Rules are amended or the partial waiver is revoked.

By Lawyers Leases (NSW) guide updated for electronic lodgement of leases

The relevant sections of the By Lawyers Leases (NSW) commentary, as well as the following applicable precedents, has now been updated for the electronic lodgement of leases:

  • To do list; and
  • Retainer instructions.

A new folder E. If required – Electronic lodgement has been added to both the Act for lessor and Act for lessee matter plans and includes:

  • A brief explanation of the transition to E-conveyancing;
  • Letter to lessor/lessee enclosing lease to be registered and client authorisation; and
  • Client Authorisation forms.

Enjoy practice more with By Lawyers!

Author review – Conveyancing – Sale and Purchase – SA

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The By Lawyers Conveyancing SA Guide has been reviewed and updated to ensure that the commentaries and precedents are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Jess Caire. As with all our authors, Jess takes a practical approach, drawing on her considerable experience to cover all aspects of procedure, with a focus on practical tips that will help solicitors and conveyancers confidently run a sale or purchase matter to completion. The sale and purchase matter plans cater for both ‘sale by agent’ and ‘private sale’ engagements.

We invite you to explore this updated publication and to consider the wealth of assistance the guide offers for solicitors and conveyancers acting in the sale and purchase of residential property in South Australia.

Mandatory electronic lodgement- Conveyancing – VIC

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Mandatory electronic lodgement applies in Victoria from 1 October 2018. Are you ready?

Legal practitioners and licensed conveyancers acting in a transfer, mortgage/discharge of mortgage, or caveat/withdrawal of caveat, from that date must lodge the transaction electronically.

From 1st October 2018, the Registrar will not generally accept paper lodgement of any of the above instruments. However, the Registrar will accept paper lodgement if an instrument cannot be lodged electronically for any of the reasons set out in the Request to accept paper lodgement form, which is available on the Property and Land Titles website.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected and the full timeline for implementation, both accessible from the Matter Plan in our Conveyancing Guides – Vic.

Qld – PEXA settlements – Transfer duty

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New commentary has been added to the By Lawyers Purchase Guide and 1001 Conveyancing Answers Queensland to clarify the specific stamping requirements for PEXA settlements.

Stamping must commence in the PEXA Workspace so that an ELN Transaction Number generates. This allows OSRconnect to directly verify the transfer duty once stamping has been submitted.

If stamping has already occurred in paper then the ELN Transaction Number does not exist and the system is unable to verify transfer duty so settlement in PEXA is not possible. The transaction will then need to revert to a paper settlement.

See the heading ‘Duties and Grants’ in the By Lawyers Purchase Commentary for details on the procedure to be followed.

A brief explanation of the move to e-conveyancing – PEXA settlements

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Electronic conveyancing is coming

The conduct of a sale and purchase up to and including exchange can and will remain unchanged for some time as practitioners adapt to conducting matters electronically using emails and software that is currently being introduced into the market.

It is in fact possible today to prepare, submit, negotiate, sign and exchange contracts without the use of paper. Those practitioners interested in joining this move away from paper will find the means to do so within the By Lawyers conveyancing guides.

Electronic settlement has already arrived

However, the focus of this explanatory paper is the electronic settlement process – currently available via PEXA, but soon also via SYMPLI, a joint venture of Infotrack and the ASX.

So, how does PEXA work?

The PEXA process that follows exchange requires all participants in the transaction to have been identified, be registered and have a PEXA digital certification that entitles them to transact electronically in what is known as a ‘workspace’.

A workspace in the electronic conveyancing platform is opened by the vendor, or failing the vendor any other party, for each transaction and a date and time for settlement is entered. When the workspace is created the vendor ‘invites’ all other parties to the workspace via PEXA.

The workspace is where the transaction occurs. As the transaction progresses, each party can add, remove or amend their information in the workspace.

Whilst such matters as requisitions and settlement adjustments are completed outside the workspace, they can be uploaded to the workspace and made visible to a party of choice. For instance, a discharge authority might be made visible to the vendor’s discharging mortgagee only.

The vendor and purchaser sign a paper Client Authorisation allowing their practitioner to sign for them, as it is the practitioner who has the authority through their Digital Certificate to sign for clients. Therefore, the Client Authorisation is a critical document and must be retained for 7 years as they may be audited.

Outgoing and incoming mortgagees make their arrangements for settlement without input from practitioners. Payment directions are communicated by entry into a Financial Settlement Schedule which contains tabs for Source Funds and Disbursements.

Each party to the transaction completes their tasks prior to the nominated settlement time and for settlement to take place as planned, the Settlement Schedule must balance, the source funds must be available, and all documents must be signed.

How does settlement occur?

The workspace is locked automatically once everything is ready. This triggers title verification and movement of the source funds into a holding account. A final search is not required as the workspace will not lock if there are title impediments to registration.

Settlement occurs exactly as scheduled and title documents are lodged and registered, and the settlement funds disbursed in accordance with the Financial Settlement Schedule. The settlement process is automatic and completed in about 15 minutes which sees cleared funds transferred and title registered.

Note settlement can be cancelled at any time prior to the locking of the workspace.

The way of the future

 

The electronic settlement process is remarkably efficient and easy once you get used to it. As it seems inevitable that electronic settlements – and ultimately electronic conveyancing – will become standard practice, it is well worth becoming familiar with it and its really not so hard to do. By Lawyers conveyancing guides can assist you.

Electronic conveyancing – Are you ready?

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As the timeline towards mandatory electronic conveyancing marches on, By Lawyers continues to make changes to our matter plans and precedents to make sure that you are ready and that completing your matters electronically is as easy as possible.

Our matter plans have been split after ‘Mid transaction’ into ‘Paper transaction – Through to settlement’ and ‘Electronic transaction – Through to settlement’.

Precedent letters have been updated and where necessary new precedents included to cover electronic transactions.

By Lawyers helps you make a seamless transition to the new regime.

WA – Electronic lodgement for all eligible documents

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From 1 December 2017 – Any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically. Are you E-Conveyancing ready? See our paper E-Conveyancing – Get Connected for information and implementation timelines

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