FAQs and videos

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FAQs and videos

1 July 2019 mandate

From 1 July 2019, the following dealings must be lodged electronically (if eligible to be lodged electronically) whether standalone, or in combination:

  • Transfers
  • Mortgages
  • Discharges of mortgage
  • Caveats
  • Withdrawals of caveat
  • Transmission applications

1. I want to lodge a Mainstream Dealing in paper. What do I need to do?

The Mainstream Dealings Exceptions waiver (waiver) lists the types of transactions that can be lodged in paper. Some types of transactions (e.g. transfers with an attachment) must be lodged in paper. If your transaction falls outside of the waiver, you must lodge the dealing/s electronically.

2. My transaction falls within the waiver. What do I need to do?

A Conveyancing Rules Exception form (Exception form) must accompany the dealing at the point of lodgment. Lodging a Mainstream Dealing in paper without a properly completed Exception form risks the dealing being refused to be accepted for lodgment by NSW LRS, a requisition, or both. If relying on the Mainstream Dealings Exceptions waiver, the corresponding waiver number needs to be inserted in the blank space on the Exception form. For example, if a caveat only affects part of the land, then ‘1.3’ would be inserted. Similarly, if the transfer involves land in other jurisdictions, insert ‘5.9.1’. If a transfer involves a transaction outside of the Torrens Register, insert ‘5.9’.

3. What happens if I don’t properly complete the Exception form?

If lodging a Mainstream Dealing in paper you must ensure the transaction falls within the waiver. For example, if a party is relying on the waiver because old system documents were handed over at settlement for a qualified or limited title, the title will need to be a qualified or limited. Same applies for a Water access licence.

The Registrar General may conduct random audits on the Exception form, and if a practitioner is found to be improperly using the Exceptions for, ORG will refer them to the appropriate industry body.

4. My ELNO will not allow me to do a transaction, even though it is mandated and not on the waiver list. What should I do?

You should first contact your Electronic Lodgment Network Operator (ELNO) and discuss with them why a transaction is not able to be processed electronically. It is possible that there are technical reasons why a certain transaction cannot be done electronically (e.g. the type of title involved, the names of the parties, etc). In such instances, a submission in writing needs to be made to NSW LRS setting out the reasons why the transaction cannot be done electronically, and requesting that the paper dealings be accepted for lodgment.

5. Can I act for myself to buy or sell my property after 1 July 2019?

You can, provided that both parties are not represented by a lawyer or licensed conveyancer; and there is no mortgagee involved on either side of the transaction. You’ll need to provide a properly completed Exception form. In all other instances, it will not be possible to conduct a sale or purchase of your property without getting legal representation.

6. My transaction involves payment of land tax from the proceeds of a sale. How do I do that in the electronic environment?

Where land tax needs to be paid from the proceeds of a sale, you have the choice to lodge the dealings in paper until 30 November 2019. Please note that the functionality to pay land tax within the workspace will be available from 16 June 2019. Please see Waiver 3/2019 (Land Tax) for more information. You’ll also need to complete the Exception form when lodging your dealing.

7. Can I lodge leases in paper after 1 July 2019?

Yes, leases can be lodged in paper after 1 July 2019. The Conveyancing Rules Version 5 (the Rules) state that leases must be lodged electronically from 1 July 2020, if the Registrar General declares within 90 days’ notice that a lease is to be a ‘Required dealing’. Until that time, if a lease is lodged with a Mainstream Dealing (e.g. a transfer) then all the dealings can be lodged in paper.

8. I hold a transfer dated before 1 July 2019, and wish to lodge it after that date. Can I lodge it in paper?

Depending on when the transfer was signed, the Rules will determine how it must be lodged. For example, if a transfer was signed between 1 July 2018 and 30 June 2019, it must be lodged electronically unless it is accompanied by any other dealing. NSW LRS will determine the signing date from the date indicated on the dealing. For the purposes of the mandate, an undated dealing will be deemed to be signed on the date it was lodged.

If there are multiple dealings with different signing dates to be lodged together, use the date when the first dealing in the transaction was signed to determine if the transaction should occur in paper or electronically. For example, if a transfer dated 30 June 2019 and a mortgage dated 1 July 2019 are to be lodged together, the mandate as at 30 June 2019 applies and all the documents may be lodged in paper.

9. What can I continue to lodge in paper after 1 July 2019?

Any dealing apart from a Mainstream Dealing can continue to be lodged in paper from 1 July 2019, without needing to complete the Exception form. If one or more dealings in the case is not a Mainstream dealing, then all the dealings in the case can be lodged in paper (without needing to complete the Exception form).

Two specific dealings need to be mentioned. Firstly, leases are available to be lodged electronically, but don’t have to be. Secondly, transfers without monetary consideration (01TWC form) is also available to be lodged electronically, but don’t have to be.

10. What is a ‘Required Dealing’?

The Government’s mandate is to eventually reach 100% electronic lodgment. Whilst we are close to having 90% of all transactions able to be done electronically, there is a significant amount of work to bring in the remaining 10%. Part of the strategy to reaching 100% is to mandate the remaining documents when they become available, but only after a period of notice to allow industry a chance to use the new forms.

11. I am a practitioner but don’t intend joining an ELNO – what are my options?

You have a couple of options. You can refer your client to a practitioner who is registered for eConveyancing if Mainstream Dealings need to be lodged. See ARNECC Guidance Note #1, in particular Q.24 (Can another conveyancer or lawyer act for my client in an electronic Conveyancing Transaction?). Alternatively, you can engage the services of an ‘e-settlements’ agent by searching online.

12. Will the new mandates affect dealings dated before 1 July 2019?

No. The mandates that applied when the dealing was signed will continue to apply regardless of the date of lodgment. For example, standalone transfers, caveats, and mortgage transactions involving non-ADIs signed before 1 July 2018 may continue to be lodged in paper. If a dealing is undated and lodged after 1 July 2019, it will be deemed to be dated after 1 July 2019, unless evidence to the contrary is provided. In these circumstances, the new mandate requirements will apply.

13. What waivers will expire?

Of the current Conveyancing Rules Waivers, the following will lapse on 30 June 2019 (and will be moved to ‘Historical’):

Apart from CR7-2018, most of the exceptions contained in the above waivers have been retained and have moved across to the new Mainstream Dealings Exceptions waiver.

14. Can mortgagees still rely on the previous waivers?

Yes, CR1-2018 (Non-ELN enabled jurisdictions) and CR2-2018 (Non-Land Securities) which both apply to mortgages still continue after 1 July 2019.

Disclaimer: These FAQs are provided for information only and are not intended to be nor should they be construed as legal advice.

General

The Office of the Registrar General handles matters relating to eConveyancing policy and workshops. For technical questions or more in-depth information about eConveyancing processes, please contact NSW Land Registry Services or PEXA.

What is eConveyancing?

See here.

What is PEXA?

See the Registrar General's Guidelines page.

See more general eConveyancing FAQs on the Registrar General's Guidelines page.

Getting started: Registering with an ELNO
How do I register with an ELNO?

See PEXA's registration FAQs.

I’m having problems with PEXA. Can you help?

The Office of the Registrar General is responsible for overseeing the performance of PEXA in NSW. Please contact us with any concerns you have about PEXA’s performance. Please include information about the date of the incident, a short description of how it affected your transaction, whether you raised this incident with PEXA and how they responded.

Electronic lodgment and electronic Certificates of Title

What are the requirements for electronic lodgment?

See here.

What is an electronic Certificate of Title (eCT)?

See the Registrar General’s Guidelines page.

Do electronically lodged dealings take precedence over dealings lodged in paper?

See the Registrar General’s Guidelines page.

Will there be requisitions on electronically lodged dealings?

See the Registrar General’s Guidelines page.

What is a Control of the Right to Deal (CoRD)?

See the Registrar General’s Guidelines page.

What is a Priority Notice?

See the Registrar General’s Guidelines page.

See more general eConveyancing FAQs on the Registrar General’s Guidelines page.

Governance

What is ARNECC?

The Australian Registrars' National eConveyancing Council (ARNECC) is the body established to facilitate the implementation and ongoing governance of the regulatory framework for National Electronic Conveyancing. ARNECC membership comprises the Land Titles Registrars or their nominee from each Australian State and Territory.

The principal functions of ARNECC are to:

  • advise the State and Territory Governments on any proposed changes to the Electronic Conveyancing National Law (ECNL)
  • provide authoritative advice to the States and Territories about matters relating to National eConveyancing
  • ensure that, as far as is practicable, business practices with respect to National eConveyancing are consistent when implemented by the Registrars in each jurisdiction
  • ensure compliance by ELNOs with the Model Operating Requirements.

Verification of identity

What are the requirements relating to verification of identity?

Rule 4.1 of the Conveyancing Rules applies to Australian legal practitioners, law practices and licensed conveyancers ('Representatives'). From 1 August 2016 a Representative must take reasonable steps to verify the identity of clients or their agents, and persons to whom certificates of title are given.

A Representative can:

  • apply the Verification of Identity Standard, or
  • verify the identity of a person in some other way that constitutes the taking of reasonable steps.

The requirement for reasonable steps is to provide flexibility for Representatives to use their professional judgement on what is necessary in any particular circumstance. The Representative determines what steps are required to verify a person’s identity in any particular circumstance. What constitutes reasonable steps may be influenced by various factors that when taken into account contribute to a Representative being able to reasonably have confidence in the person’s identity.

Examples of these factors might include the length of time the Representative has known the person or whether they have represented the person on previous occasions.

Should a Representative choose to follow the Verification of Identity Standard they may be deemed to have taken reasonable steps. However, the Standard is not intended to be the only way of complying with the reasonable steps requirement.

The Verification of Identity Standard is the standard set out in Schedule 8 of the Participation Rules determined under the Electronic Conveyancing National Law. Download NSW participation rules for electronic conveyancing.

For more information, including other ways that constitute taking reasonable steps, and how to identify a client who is overseas, see ARNECC’s  MPR Guidance Note #2 – Verification of Identity.

What are the requirements relating to verification of identity as a mortgagee?

Section 56C of the Real Property Act 1900 requires a mortgagee to take reasonable steps to identify the mortgagor.

For changes to Verification of Identity requirements for mortgages executed on or after 1 January 2015 see LRS Circular 2015/09 Changes to Verification of Identity (VOI) requirements for mortgagees.

Can I use an agent to verify identity?

Rule 4.2 of the Conveyancing Rules provides that a Representative may use an identity agent to perform verification of identity.

Right to deal

What is right to deal?

Right to deal is the entitlement of a person to be a particular party to a conveyancing transaction.

The NSW Participation Rules require a Subscriber to take reasonable steps to verify the right to deal of their client, and/or the mortgagor for a mortgage.

Rule 4.3 of the Conveyancing Rules requires that a Representative take reasonable steps to verify that a client is a legal person and has the right to enter into a conveyancing transaction.

Possession of a Certificate of Title for a parcel of land is not of itself sufficient to prove that a person is the owner of that land or is otherwise entitled to deal with it.

The increasing incidence of identity theft and associated fraud, including mortgage fraud means that all parties to land transactions and their agents must exercise due diligence in verifying the identity of persons claiming a right to deal in land.

For more information see ARNECC’s MPR Guidance Note #4 – Right to Deal.

Client Authorisation

What is Client Authorisation?

A Client Authorisation is a document that enables your client to authorise you to act on their behalf in a transaction.

For government and in-house lawyers, the NSW Participation Rules makes it clear that this requirement only applies to those acting on behalf of a client. Instead, you will be relying on a power of attorney or delegation.

It’s similar to a power of attorney, though the legislation specifically states that it is not a power of attorney – which means a Client Authorisation does not need to comply with any legislative requirements relating to powers of attorney.

When acting for your client under a Client Authorisation, you can:

  • sign registry instruments or other documents
  • present registry instruments or other documents for lodgment with the Land Registry
  • authorise or complete any associated financial aspects of the transaction.

For more information see ARNECC’s  MPR Guidance Note #1 – Client Authorisation or download a client authorisation form.

How to complete a Client Authorisation Form

Record-keeping requirements

Do I need to keep eConveyancing records?

Rule 5 of the Conveyancing Rules requires that a Representative, or where there is no Representative, a Party must retain the evidence supporting the dealing for at least seven years from the date of lodgment of the dealing that is registered or recorded including any evidence supporting verification of a Party’s identity.

The evidence does not need to accompany the dealing when lodged with LPI.

For more information on supporting evidence, see ARNECC’s  MPR Guidance Note #5 – Retention of Evidence.

Security

Is eConveyancing safe?

There are a number of safeguards to ensure the data security and safety of eConveyancing.

The increasing incidence of identity theft and associated fraud, including mortgage fraud, means that all parties to land transactions and their agents must exercise due diligence in verifying the identity of persons claiming a right to deal in land. Processes such as verification of identity, right to deal and client authorisation are aimed at limiting the impact of fraud and increasing security.

Practitioners should be careful not to provide banking details via email for transmission of settlement sums to reduce the incidence of cyber fraud attacks.

More information about identity theft and strategies for limiting its impact is available from: