ByLawyers News and Updates

Duplicate certificates of title abolished – WA

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Duplicate certificates of title have no effect in Western Australia from 7 August 2023. Duplicate titles or duplicate certificates were also known as paper titles or title deeds.

Under the Transfer of Land Amendment Act 2022, duplicate or paper certificates of title were rendered invalid. They ceased to enjoy the status of a legal document from 7 August 2023. Paper certificates of title will no longer be issued or created by Landgate, nor required to register a dealing.

Verification of identity and establishing a right to deal with an interest in land are now the means of proving ownership. They replace possession or control of a paper certificate of title.

Full electronic conveyancing in Western Australia is one step closer thanks to these changes modernising land transactions.

If you do hold a paper or duplicate certificate of title, you do not need to return it to Landgate or destroy it. It will automatically be considered invalid from 7 August 2023. You can keep your duplicate certificate of title for display purposes.

One can obtain a record of your certificate of title through Landgate’s website through a title search. It will show you the most up to date information and any interests registered over the title.

The By Lawyers Western Australia Purchase of Real Property, Sale of Real Property, Lease, Mortgage, Probate, and Letters of Administration publications have been updated accordingly.

 

 

 

Electronic lodgment – QLD

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Mandatory electronic lodgment applies for conveyancing in Queensland from 20 February 2023.

Section 4 of the Land Title Regulation 2022 requires legal practitioners and licensed conveyancers to draft and lodge the following required instruments via an Electronic Lodgment Network (ELN):

  • transfer;
  • mortgage;
  • release of mortgage;
  • caveat;
  • request to withdraw a caveat;
  • priority notice;
  • request to extend a priority notice;
  • request to withdraw a priority notice; and
  • application to be registered as a personal representative for a deceased owner.

There are some exceptions to the electronic lodgment of these required instruments, including where:

  • the ELN does not have the functionality to draft and lodge the instrument;
  • a required instrument, such as a transfer or mortgage, for example, was executed in a hard copy form before 20 February 2023: s 6;
  • the required instrument needs to be lodged with another instrument that cannot be lodged using an ELN; or
  • a party to the instrument is a self-represented natural person who is not subscribed to an ELN.

Section 5(2) of the Land Title Regulation 2022 provides the full list of exemptions to electronic lodgment.

Electronic conveyancing is already the preferred method for the lodgment of title instruments by lawyers and licensed conveyancers, having been introduced in Queensland in 2013. The two Electronic Lodgment Network Operators (ELNOs), Property Exchange Australia Limited (PEXA), and Sympli Australia Pty Ltd (Sympli).

The By Lawyers Queensland Conveyancing publications have been updated to reflect this change. For more information see:

  • E-Conveyancing – Required instruments in the Purchase of Real Estate (QLD), Sale of Real Estate (QLD), and Mortgage (QLD) guides;
  • A brief explanation of the transition to E-conveyancing,  on the matter plan in all By Lawyers Conveyancing Guides, which includes information on how to get connected and the full timeline for implementation.

Electronic conveyancing – SA

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From 3 August 2020, electronic conveyancing takes a big step forward in South Australia.

From that date, electronic lodgement of the following documents with Land Services SA will be mandatory:

  • Transfer
  • Caveat
  • Withdrawal of Caveat
  • Encumbrance
  • Discharge of Encumbrance
  • Transmission Application
  • Application to Register Death by Survivor
  • Lease
  • Surrender of Lease
  • Underlease
  • Surrender of Underlease
  • Transfer of Mortgage
  • Transfer of Encumbrance.

There are now two Electronic Lodgement Network Operators (ELNOs) active in South Australia – Sympli and PEXA. Sympli have been approved for transfers, caveats, withdrawal of caveats, mortgages and discharge of mortgages in SA. Practitioners can use either or both for their electronic conveyancing requirements.

 

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.

E-conveyancing from 1 July 2019 – NSW

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In a continuation of the transition to E-conveyancing version 5 of the Conveyancing Rules replace version 4 from 1 July 2019.

Version 5 of the rules provide that all mainstream dealings including transfers, mortgages, discharges of mortgage, caveats, withdrawals of caveat and transmission applications, or combinations thereof, must be lodged electronically when signed on or after 1 July 2019, except where a waiver applies.

Waivers

Waivers apply to certain transactions that are not able to be lodged electronically.

The following waivers which operate from 1 July 2019 in conjunction with Conveyancing Rules version 5 have now been published:

If eligible for a waiver, a Conveyancing Rules Exception form will need to be complete at the point of lodgement. This form is available in the sale and purchase matter plans.

An Alert has been added to the by Lawyers Conveyancing Sale and Purchase matter plans regarding the 1 July 2019 mandate.

Keep up to date with By Lawyers

By Lawyers keep you up to date with E-conveyancing. A brief explanation of the transition to E-conveyancing in the By Lawyers Conveyancing Sale and Purchase matter plans can provide further assistance.

Transition to E-conveyancing – All states

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The By Lawyers commentary ‘A brief explanation to the transition to E-conveyancing‘ has been updated.

This very practical and topical commentary is available in all By Lawyers Conveyancing & Property Guides, including Sale, Purchase, Mortgages and Leases.  It helps all practitioners to get up to speed on the ever-accelerating transition to E-conveyancing.

The recent updates cover:

Important new industry mandated time frames

NSW – From 1 July 2019, mainstream property dealings including transfers, mortgages and discharges of mortgage, caveats, withdrawals of caveat and transmission applications must be lodged electronically.

VIC – Land Use Victoria has mandated that complex land transfer transactions must be lodged and managed online from 1 August 2019, bringing almost all transactions online. Duties Online enhancements are scheduled to take effect from 17 June 2019.

Details of the new Electronic Lodgement Network Operator, Sympli

The second ELNO, Sympli is coming soon to join PEXA in the e-settlement space. Sympli promises an intuitive and user-friendly platform.

Information regarding the new settlement agent network, SettleIT.

SettleIT, an InfoTrack initiative, is a shared network of specialist settlement agents that handle e-settlement processing on behalf of property practitioners. With one click, a SettleIT agent
can be booked to provide a personalised, fixed-price service to take a conveyancing matter through to settlement.

Keep up to date with By Lawyers

By Lawyers Conveyancing guides provide all the information required to conduct conveyancing, including electronic property transactions, confidently and efficiently.

Author review of Conveyancing (VIC) Publication

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Conveyancing (VIC) – Author review

The By Lawyers Conveyancing (VIC) Publication, which includes the 1001 Conveyancing Answers, Sale of Real Property and Purchase of Real Property guides, has been reviewed to ensure that the commentaries and precedents (including the By Lawyers Contract of Sale of Land) are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Russell Cocks. As with all our authors, Russell takes a practical approach drawing on his 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.

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

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.

Conveyancing Victoria – Seven reasons to use the By Lawyers Contract of Sale of Land

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The By Lawyers Contract of Sale of Land for Victoria is gaining more fans among Victorian lawyers and conveyancers all the time, as it simplifies the conveyancing process.

For those still wondering what all the fuss is about, you can read below Seven reasons to use the By Lawyers contract – or you can listen to this lively and informative podcast:

 

Seven reason to use the By Lawyers Contract of Sale of Land:

  1. The contract and the vendor’s statement are combined into ONE document, with the vendor’s statement, logically, coming FIRST. The vendor’s statement is formatted to deal with the obligatory disclosures first, then to group the optional fields in a way that makes removal of those fields simple if they are not required. Part 2 general conditions in PDF form removes the need for ‘standard’ special conditions. Any genuinely special conditions can be added.
  2. Clear new approach – all pertinent details are set out in Part 1 to enable anyone to quickly understand the deal by referring to this Part.
  3. Particulars of sale include a “sunset date” for off the plan approvals. No more searching through mountains of special conditions to work out this crucial date.
  4. Non-derogation warranty. The general conditions can be amended by any special conditions BUT not so as to reduce the rights created by the general conditions. No more contracts that say one thing on page 1 and reverse that on page 15! This contract is fair to both parties.
  5. General Condition 12 – deposit release – establishes a clear protocol for early release, by requiring timely objection to title. Title objections actually have very limited relevance to the Torrens system, as title is part of the disclosure in the contract. General Condition 12 allows 28 days to object to title. This offers protection to purchasers, while allowing the vendor to have use of the deposit. Again, this process is fair to both parties.
  6. General Condition 14 – loan condition – extends the time for approval to 21 days and allows for extension, subject to vendor’s ability to end the extension by notice.
  7. General Condition 25 – losses – removes any disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement. Unless there is a legitimate objection to title, the matter is settle and disputes relating to quality and inclusions etc, follow after settlement. This removes unnecessary settlement delays.

The By Lawyers Contract of sale of Land is available to LEAP users and By Lawyers subscribers via the Conveyancing & Property – Sale matter plans, or for purchase on the By Lawyers website.

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