ByLawyers News and Updates

Family law property dealings – FED

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For the assistance of practitioners conducting family law property dealings, a new folder has been added to the By Lawyers Family Law publication. Commentary and precedents are available to assist family law practitioners at the point of a matter where real property needs to be transferred between the parties.

The new folder is called If required – Real property dealings. The commentary and precedents within the new folder are extracted from the By Lawyers Conveyancing and Property publications. They provide guidance and the necessary forms and precedents to verify the client’s identity to the relevant standard for electronic lodgments of transfers and dealings with real property.

The new folder contains the following precedents and commentary required for the electronic settlements process:

This useful content has been added to the Property Settlement guide and the Financial Agreements guide. The new folder can be found in Finalising the matter on both matter plans. The location of this new content reflects the fact that family law property dealings are typically effected upon finalisation of the matter.

Family law practitioners are reminded that the commentary in both the Family Law Property settlement and Financial agreements guides cover the considerations and procedure for transfers of real property in family law matters. The By Lawyers 101 Family Law Answers reference guide also provides helpful information which includes valuing real property in the family law context, stamp duty implications of real property transfers in family law, together with coverage of capital gains tax and foreign resident withholding payments.

This enhancement arises from feedback from a By Lawyers subscriber. We value such feedback and always love to hear our users. Don’t hesitate to get in contact: askus@bylawyers.com.au

Electronic conveyancing – ACT

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Electronic conveyancing commenced in the ACT on 1 June 2020.

Legislation

The Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 and the Electronic Conveyancing National Law (ACT) Act 2020 came into effect on 1 June 2020. Together they introduced electronic conveyancing to the ACT.

Electronic conveyancing

The legislation does not mandate the use of electronic conveyancing. It remains a matter of choice for the parties to the transaction.

Electronic Conveyancing allows practitioners and financial institutions to interact and transact together online. Documents are created, signed and lodged within the online environment. All necessary steps to settle the transaction are completed within that online environment.

For assistance see the dedicated commentary ‘A brief explanation of the transition to E-conveyancing‘ which can be found in the Reference materials folder on the By Lawyers Conveyancing matter plans. This helpful resource contains information on how to get connected with PEXA or Sympli and covers verification of identity, client authorisation and certification and record keeping.

Verification of identity and client authorisation

Before entering into a transaction and executing a form to be lodged at the Land Titles Office – either electronically or in person – practitioners must be authorised by their client. This occurs by the client executing the Client Authorisation Form prior to completion.

Practitioners must take reasonable steps to verify that the client is a legal person and has the right to enter into the transaction. Documents used to verify a person’s identity must be retained for at least seven years from the date the Instrument is lodged with the Land Titles Office. Land Titles Office documents are being updated to include the new certification requirements.

The Land Titles Office will accept the existing forms lodged by legal practitioners and mortgagees up to 1 September 2020. If lodging dealings on a form without the certification requirements, practitioners must meet all the requirements of that form, including all signatures, witnessing requirements and producing the paper certificate of title, if required, as evidence of the right-to-deal.

Precedent updates

The By Lawyers Conveyancing (ACT) publication has been updated to include all necessary verification of identity and client authorisation forms. The relevant precedents have been updated to include electronic conveyancing options.

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