Webinar Q&A

Summary answer for questions listed below

The changes from 11 October 2021 are to support the move to a full electronic environment. To achieve this, existing Certificates of Titles (not the title to land) will be cancelled and will no longer be issued. A person has title to the land when they are recorded as the registered proprietor on the Torrens Title Register (‘the Register’) - not by being possession of the paper Certificate of Title.

The Register was computerised back in 1983. Today, information in the Register is securely stored in a cloud-based environment by NSW Land Registry Services, the operator of the land registry (NSW LRS), on behalf of the NSW Government. This information is also required to be backed-up and securely stored in a digital environment. As an added security measure, NSW LRS must provide a daily copy of the Register to the Office of the Registrar General who then in turn digitally stores the back up in a separate location.

Critically, the NSW Government continues to guarantee land titles, backed by the Torrens Assurance Fund which compensates landowners who suffer a loss due to fraud or error in title registration – nothing in the move to a full electronic environment change this.

Questions

• Given the early stories about hacked transactions in sale conveyancing transfers, and people's fear of the unknown, i.e. a new system, what existing examples are there of other places or countries successfully using electronic titles?
• What is stopping a subscriber from committing fraud and dealing with land without having established the right to deal. A crazy person can cause crazy consequences.
• No doubt the system is robust - however not absolutely unbreakable - this is the major concern.
• Why did the government sell the lands registry and there are more charges and taxes to the client?
• Does a conflict of interest exist with the NSW Land Registry Services and those who regulate the system? I’m still waiting on a response from your office. If you operate under a fixed unit trust ABN 23 519 493 925 .. who are the beneficiaries?
• It seems to me that LRS is transferring total responsibility to the PEXA Subscribers - solicitors and conveyancers - history has shown us that unfortunately there are solicitors and conveyancers who go bad and defraud their clients. Aren't you opening the door when ARNECC only requires subs. honesty.
• How do you trust that subscribers will not commit fraud. I feel the system is open to abuse by parties in dispute. I can foresee many cases. CT was some form of check and balance. (edited)
• So then, what’s to prevent centralised fraud? Where the register itself is tampered with? What controls are in place to police the controllers who now essentially own the ledger? How do citizens contend or challenge what they might deem are errors or fraud?
• What’s the governments liability if they stuff it up? The latest governing approach is they can do what they want when they want no matter the consequences to us. What are the consequences to government if they stuff up or allow the system to be misused whether intentionally or otherwise?
• You mentioned that this is similar to share holdings, it doesn’t seem that way. With share holdings I have an account, a statement and an agreement that I can fall back on. With EC I have none of those. I’m relying on the governments word, I have no proof of ownership that i control.
• How are the data and records protected on your platform in the case of a cyber attack?
• What cyber security measures have been taken to ensure the register cannot be hacked? Is there intended to be a compensation fund to cover losses arising from unauthorised or fraudulent dealings on the register?
• What happens if the internet goes down? How do we prove we have ownership said from Govt records that are not controlled by us?
• What happens if a cyberattack happens and someone uses the CT used as an equity to take a loan on behalf of the owner of the CT. This has happened in the USA. On cyber attack.
• WHAT happens in the event of a computer hack? If there are NO paper trails, then how can ownership be established?
• If the database where the CTs are stored crashes - what then? What assurances can you provide this won't happen and there is backup - where is this located?
• If the database is hacked, what happens?

Is it true that all home owners are going to lose their properties in this process? How safe is the new system? How easy is fraud in this system? Do I have to find a lawyer or conveyancer every time I want to check the system for my property?

No one is losing their property after the 11 October. There is no new “system” that’s being introduced – it’s the same system that has operated since 2013. Its much more secure than dealing with paper (including paper certificates of title) and lawyers and conveyancers are the only ones able to lodge dealings on behalf of their clients.

If there was to be a cyber attack and records were damaged, how does a landowner prove they own a property?

Assuming that the Register is destroyed, proof of ownership only comes into play if someone else claims to have better title than you. This is what Old System title is necessitating parties have with them things like rate notices, utility bills, statutory declarations from neighbours etc; hence why the Torrens Title system was created. The Register can never be destroyed as it is duplicated in several locations and why no attack has occurred since 1983 (when the Register was computerised).

Do we understand outages and the impact of this on settlement processing - E.g. if PEXA is up but the registry is down?

Where either the Land Registry or the ELNO experiences an outage, the Conveyancing Rules provides that the parties can lodge their documents in paper.

What if there is an error or discrepancy in the system? What are the rights of review?

There is always a right to review a decision. Please see how to initiate a review.

What if there is a dispute as to whether or not a person is entitled to deal with the land / lodge a dealing?

This is where the Subscriber must verify that the parties are entitled to be in the transaction. If the Subscriber hasn’t carried out their checks to the required standard and because of that, damage occurs, their insurance pays out and likely that the Subscriber is suspended or terminated from using eConveyancing. None of these protections apply in paper, hence why fraud or disputes as to whether someone has authority to be in the transaction is unlikely in eConveyancing.

Mention was made the dealings recorded on the Register are guaranteed by the State. Does this apply even if the dealing was fraudulent?

Correct. The Torrens Title system is based on indefeasibility – which means anything that is recorded on the Register is absolute, even if it got there by fraud. In such instances, the Assurance Fund is there to compensate the innocent owner to the full value of what they lost. In 99% of cases, it is a mortgage fraud, so the Fund pays out the mortgage so the innocent owner keeps their home. The Registrar General and the police then initiate proceedings against the fraudster.

Should we be recommending Title Insurance to clients?

This is a commercial decision for clients; however, the reforms on 11 October does nothing to change the current process with recording interests on the Torrens Title Register.

Presumably this means lodgment of caveats etc. now requires an intermediary with access to the eRegister, or are caveats etc able to be dealt with differently?

Lodgment of caveats up until 11 October can be lodged by anyone who wants to lodge in paper without using a lawyer or conveyancer. Today we receive around 10-20 caveats a month lodged this way – compared to the 1200 lodged electronically. After 11 October, all caveats must be lodged electronically.

If you owned a property unencumbered would you consider lodging a caveat for extra protection?

Anyone who is in fear of a possible fraud on their property is entitled to lodge a caveat. However, in 99% of cases of fraud the reason it could happen was because someone had access to the innocent owner’s CT. Where there is no CT, the possibility of fraud using a CT is eliminated. Therefore, it is of little value to lodge a caveat after 11 October.

Is it worthwhile for a registered proprietor to lodge a caveat to protect that proprietor's interest in the property?

No, this is not necessary, especially when CTs are cancelled. This is because the CT cannot be used for fraud, as it likely happens now. Removing CTs removes the weakest link in the land titling system.

Will there be a "title watch" subscription option for landowners of various properties within NSW?

Now there is no title watch service; however, NSW Land Registry Services will soon investigate the feasibility of providing such a service. It is noted that similar services offered in South Australia and Western Australia have a very low take-up.

I act for vendor, contract is exchanged. Title unencumbered original paper title deed cannot be found. Settlement in December 2021; therefore a CoRD won't be required. Given settlement date is in December, is there a need to find original paper deed given paper CTs will be abolished?

From 11 October 2021, when CTs will be abolished, CTs (paper or electronic) will not be needed for an electronic settlement to occur.

Would you please confirm that if at the moment a registered proprietor can not locate their title deed then as from 11 October 2021 this will not affect their right to sell or transfer the property?

This is correct. From 11 October 2021, a lost CT will not affect a registered owner’s right to sell or transfer their property.

We have a missing CT - do we now need to replace it given it will be eTitle soon?

If the CT is required for a settlement or transaction that will occur prior to 11 October 2021, a replacement CT should be obtained (that request should be submitted to LRS before Wednesday 6 October 2021). If this is not the case, a replacement CT is not needed.

If an unencumbered original paper title deed cannot be found and settlement is after 11 October 2021, is there a need to find the original paper deed given paper CTs will be abolished?

No.

We act for an estate matter where there is a property involved that will need to be sold. The executors cannot find the CT. Can we still proceed to sale settlement without CT? Do we need to obtain a new CT? Settlement will be after 11 Oct 21.

From 11 October 2021, when CTs will be abolished, CTs (paper or electronic) will not be needed for an electronic settlement to occur.

If a CT is lost does cancellation automatically happen?

The cancellation of CTs from 11 October 2021 is effected by legislation. A lost CT will not impact the cancellation.

With the cancellation of current CTs, will the CTs be automatically transferred and recorded in the Torrens register or will current CT holders need to procure the services of a subscriber before 11 October to ensure the CT is transferred to the register?

There is no need to do anything before or after 11 October 2021. The cancellation of certificates of title from 11 October 2021 is effected by legislation. A certificate of title is a copy of the land ownership details that are already recorded in the Torrens Title Register.

As property owners, do we need to do anything prior to 11 October or is the conversion automatic?

No. The cancellation of certificates of title from 11 October 2021 is effected by legislation. A certificate of title is a copy of the land ownership details that are already recorded in the Torrens Title Register.

What happens to paper titles being held at banks? Do we need to do anything or instruct our banks of anything prior to 11 October?

No. The cancellation of certificates of title from 11 October 2021 is effected by legislation. A certificate of title is a copy of the land ownership details that are already recorded in the Torrens Title Register.

Existing physical CTs obtained by Lenders, what steps or actions are Lenders undertaking prior to 11 October 2021?

Lenders are not required to do anything prior to 11 October 2021. The cancellation of certificates of title from 11 October 2021 is effected by legislation.

How do you obtain copies of your title deeds for properties that you have paid off but are still held by your bank? How do you request a copy of a title deed if you can't locate the paper copy? Can you check who is currently in possession of your title deeds via the new digital system?

The bank will need to register a discharge of mortgage before a new certificate of title will issue. You have until Wednesday 6 October 2021 to do this. No, you cannot check who is currently in possession of your title deeds via the new digital system. From 11 October 2021, certificate of titles will no longer exist.

Is it still possible to get CTs from the bank up until 11 October (so long as there is no mortgage)?

A CT is only issued by NSW LRS. The last day when you can lodge a dealing (via a Subscriber to an Electronic Lodgment Network) with LRS that will result in the issue of a new CT is Wednesday 6 October 2021. LRS will be releasing communications about this soon.

How do we obtain our original handwritten deeds that were kept by Land Titles when change of ownership occurred and only a certificate of title was provided?

Unless the original deed is held by the owner, it likely no longer exists. As each new owner is registered on title, the existing certificate of title is destroyed and a new one issues (at least until 11 October 2021).

Can you obtain your original certificate of title the folio version to have as a keepsake? This would save on costs of disposal.

Yes. From 11 October 2021, it is up to the registered owner who they do with the original certificate of title.

What happens when clients come in with missing CTs?

If the client requires the CT for a settlement scheduled before 11 October 2021, you will need to request a replacement CT from LRS. This is possible up until Wednesday 6 October 2021. LRS will be releasing communications about this soon.

Does this mean that if a paper CT has been lost there is no need to apply for a replacement?

Yes, unless the CT is required for a settlement scheduled before 11 October 2021, in which case you will need to request a replacement CT from LRS. This is possible up until Wednesday 6 October 2021. LRS will be releasing communications about this soon.

When will PEXA update their system? We have a settlement booked for 12/10/21 and currently still asking for Consent and eProduction receipt. Should we send the CT to LRS to obtain the eProduction receipt as the CT was issued prior to CAC. Is the 11/10/21 "set on stone" and no delay is expected?

If you are completing the consent in the workspace before 11 October you will still need to do this, even if settlement is booked for the 12th. Workspaces in PEXA from 11 October 2021 will no longer have a consent screen.

Will production receipts pre 2004 still be relevant?

Only up to and including 10 October 2021.

Would the CAC still be required if settlement was initially scheduled to occur before the cessation date, but gets delayed and ends up being after the cessation date?

For a settlement scheduled before 11 October 2021, the CAC will be required, where relevant. From 11 October 2021, a CAC will not be required, but will not prevent a transaction or settlement from occurring if included in the workspace.

What will be replacing the CT authentication number when we act for the vendor in PEXA?

There will be no replacement. From 11 October 2021 there is no CT – and by extension no Certificate Authentication Code.

What replaces the authentication number in PEXA when we transfer the title?

From 11 October 2021, CACs/ eProduction receipts/ authentication numbers will no longer be required. The PEXA Workspace includes a Title Activity Check – an automated check (similar to a title search) between PEXA and what is recorded on the relevant register at LRS.

If an old school original Vol. Fol. certificate of title, held as joint tenants, is lost by a client, how can a dealing e.g. a Notice of Death, be filed electronically without the currently required NSW LRS Production Code (which is currently obtained by producing the old school parchment CT)?

Up until 11 October, you’ll need to present the original Vol.Fol CT to NSW LRS for inspection and issue of a production receipt. From 11 October, you will no longer need to present it for inspection as a production receipt will no longer be required.

Will the volume and folio numbers remain on the title deeds?

Yes. If you are in possession of your current CT the folio identifier remains the same as that recorded on the Torrens Title Register.

Also will the title deeds to the property or land remain the same?

After 11 October there is no more title deeds or paper certificates of title. The Torrens Register remains, and always will remain the single source of truth to a person’s ownership of land.

How does a homeowner prove that they own their home outright, free and unencumbered? We are still waiting for review. (edited)

A title search is conclusive proof as to a person’s ownership.

What documents will be in place to prove ownership of property by land owner particularly those unencumbered? Is there a list of items one must have in order to deal with the property as was the case using CT?

A title search is conclusive proof as to a person’s ownership.

ARNECC guidance note #4 provides a comprehensive guidance to establish a person’s right to deal.

I am a landowner. How do I access records on the Torrens Title Register to prove my land ownership?

A title search is conclusive proof as to a person’s ownership.

When this comes into affect will I still own my home?

On 11 October 2021 all land transactions must be done electronically. This has no impact on landowners and landowners don’t need to do anything – it just means that the land registry will no longer accept paper, including the paper CT. Yes, you still own your own home as ownership details are recorded on the Torrens Title Register, as it has always been since 1900.

What does this mean for everyday property owners? Will it effect anything in terms of us owning our home or having control of our home and land? Will we lose any ownership rights? What are the negatives for us? Is there any gain?

No, the changes will not result in a person losing any land ownership rights.  Everyday property owners will no longer receive a paper Certificate of Title (for unencumbered properties). As there will no longer be paper dealings after 11 October, the need for a paper CT is redundant.

A person’s legal ownership is, and has always been since 1900, what’s recorded on the Torrens Title Register. This Register is guaranteed by the state. A paper CT was only ever a copy of what’s on the Register.

Come 11 October, all transactions will be 100% electronic, where it is more secure and more efficient than in paper. Electronic conveyancing has reduced the incidence of errors to almost zero; and the opportunity for fraud is significantly reduced.

Will this lower my property value at sale time? What are the potential negative impacts by owning a house on land that is no longer mine? By paying off land via mortgage loan and now not having the chance of owning it, are the funds that I wasted on it able to be recouped?

The Torrens Title Register is the single source of truth as to a person’s ownership of their land. The reforms of 11 October include the cancellation of the paper CT: not the cancellation of a person’s title on the Register.

Will we receive an email confirmation? We can print if we want to as evidence of ownership. Just for duty of care to incase the system crashes or gets hacked or wiped?

A title search of the Register is conclusive proof of a person’s ownership in land.

I already own my home. Do I have to prove I own it? If I have to, how does a homeowner prove that they own their home outright, free and unencumbered?

No. A title search, which is conclusive proof of a person’s ownership in land, can be ordered via an authorised NSW Information Broker or directly from LRS.

Will we still be able to search titles/ the register through infotrack?

Yes, it will still be possible to search titles and the Register from 11 October 2021.

Should trustees holding titles for unincorporated associations undertake confirmatory title searches on 11 October and advise beneficiaries of the result or take any other steps?

The changes will not alter land ownership details that are already recorded on the Torrens Register. Trustees and beneficiaries should obtain independent legal advice with respect to property assets.

What happens if a purchaser has not registered the transfer of the property into their name 4 years after a paper settlement. According to any Title Search, the Vendor is still the registered proprietor and therefore can "sell" the property again.

If the new owner makes the decision to not register their transfer, then they risk this scenario as described. Getting dealings registered on the Register should be the highest priority for any purchaser particularly after handing over money for the purchase.

The rights to royalties for various minerals depends on when the freehold grant was first issued. Will it still be possible to historically search LRS for the original freeholding title?

Yes, it is still possible to conduct a historical search after 11 October 2021.

We may have two individuals who have exactly same name. How can you tell person A, rather than person B, owns a particular property?

Please refer to ARNECC guidance note #2.

How do you ascertain right to deal if say individuals share the same name? eg. John Smith (father owns the land), yet John Smith (son) issues instructions for the sale.

Please refer to ARNECC guidance note #2.

What is the protection against a person having the same name as the registered proprietor from duping the solicitor or conveyancer as being the genuine owner? He could be, for instance, the tenant of the property and have identification linking him to that property.

Please refer to ARNECC guidance note #2.

Say a new client. John Smith, contacts you to transfer a property without a mortgage. A title search shows John Smith is the registered proprietor of the property. How do you establish that the John Smith that has contacted you is the John Smith recorded on the title?

Please refer to ARNECC guidance note #2.

How to prevent my property being sold by a person having identical name to mine? If this happens, who is responsible to indemnify me?

Please refer to ARNECC guidance note #2. Any innocent landowner who suffers loss today will be compensated by the NSW Government and this continues on after 11 October.

I have two clients who have the SAME NAME. One owns an Unencumbered property. How will we verify new clients who FALSELY claim they own a property in the name of someone else with the same name?

The Subscriber would need to determine that the person claiming to be the owner is the actual owner. This would be performing a face-to-face verification of identity interview as per the VOI Standard in the NSW Participation Rules. If a Subscriber has done this, they are deemed to have done everything reasonable. If the fraud still occurs, the innocent owner can claim compensation from the State Government through the Torrens Assurance Fund.

Does the Torrens Register record the date of birth of the owners? Does the Torrens Register record the ACN of companies (i.e. what happens if the company changes its name)?

No, the Torrens Register does not record the date of birth of owners. The Torrens Register does record the ACN of companies.

Can the search from NSW LRS find out the date of birth of the registered owner? This is important as father and son could have same names and if there is no mortgage on title, this could be a possible fraud. Reason why we bring this up because we had come across one such fraud case in the past.

A registered owner’s date of birth is not recorded on title. However, the Subscriber would need to determine that the person claiming to be the owner is the actual owner. This would be performing a face-to-face verification of identity interview against the identification documents being produced. If the fraud still occurred, the innocent owner is able to claim compensation from the State Government through the Torrens Assurance Fund.

I understand LRS are not a PEXA subscriber and from experience, PEXA does not clarify dealings with LRS, how do we get around this?

NSW LRS is not a subscriber – they are the land registry. Not sure what “clarify dealings with LRS” means?

How can we check subscriber eligibility?

The NSW Participation Rules contains the rules to be eligible to be a subscriber. Please see ARNECC guidance note #7.

Do we know how many non lawyers and non conveyancers are PEXA subscribers? I.e how many 'do it yourselfers' are there out there?

You’ll need to talk to PEXA or Sympli to find this out. We are aware of several developers who are subscribers.

How can a government agency lodge dealings such as TGE's, request. Can they be a subscriber in their own right?

Yes, government departments are eligible to be a subscriber. Please contact either PEXA or Sympli for more information on how to join.

How can we check the subscriber eligibility? Is PEXA the only system to apply through?

The NSW Participation Rules contains the rules to be eligible to be a subscriber. Please see ARNECC guidance note #7.

Who can subscribe? Can an ordinary person be a subscriber?

Technically, anyone with good character and is of capacity can be a subscriber. However, the difficulty without being a lawyer, conveyancer, bank, government department, etc is securing the required insurance for conveyancing transactions. Usually, insurance companies will only give coverage for conveyancing transactions if you are legally trained to do conveyancing.

What will be the process to lodge dealings after 11 October for a Government entity transacting on its own behalf? I understand that this falls in the category of Principal Subscriber.

Correct. The government entity can either sign up as a Subscriber (in the capacity of principal subscriber) and act for itself; or otherwise, it can engage the services of a separate lawyer or conveyancer to represent the entity.

Does this mean that the liability falls on the subscriber to verify the identity of the person who wishes to deal and any fraud that may occur as a result of that will render the subscriber as being liable for failure to identify the fraud.

It all depends on the circumstances. Subscribers who want to get ‘safe harbour’ can use the VOI Standard in the NSW Participation Rules. If a Subscriber has done this, they are deemed to have done everything reasonable, even if it results in a fraud where fraudulent identity was used. Please see ARNECC guidance note #2 for more information.

In a subdivision which concerns the transfer of common property to an owner, if the Owners Corporation is legally represented but the owner is not how do you proceed to register the transfer? Is the owner expected to go through the expense of engaging a subscriber to simply register a transfer?

Yes, both parties to a transfer must engage a subscriber to prepare and lodge the transfer.

When I inherit a property on the death of a family member, do I then find a lawyer to transfer the title to me? Or can I be a subscriber myself even if I am not a professional?

You’ll need to engage the services of a lawyer or licenced conveyancer to transfer the property to you.

Is only a landowner's solicitor/conveyancer entitled to lodge a dealing affecting the land?

Yes, that’s correct.

It does have an impact on land owners as they can no longer deal with their land transactions without engaging a lawyer. Their is a difference between becoming electronic and restraining individuals and other companies from also engaging in an electronic environment of lodgement.

ARNECC sets the rule for subscriber eligibility. From 11 October 2021 only subscribers can lodge dealings with NSW LRS. It is worth noting that legally (whether in paper or electronic) only lawyers or licenced conveyancers can act for other people to conduct legal work, which includes conveyancing transactions. See the Legal Profession Uniform Law Application Act 2014 for more details.

After 200 years why are registered surveyors being restricted from lodging dealings on behalf of their clients?

ARNECC sets the rule for subscriber eligibility. Generally, surveyors aren’t eligible to be a subscriber to an ELNO. From 11 October 2021 only subscribers can lodge dealings with NSW LRS. It is worth noting that legally (whether in paper or electronic) only lawyers or licenced conveyancers can act for other people to conduct legal work, which includes conveyancing transactions. See the Legal Profession Uniform Law Application Act 2014 for more details.

Can you confirm that the audit request email is [email protected] please?

That is correct. Please see our article 'Don't ingnore a subsriber compliance audit request' for more information.

How do land owners give Subscribers permission to act on their behalf?

Under the NSW Participation Rules, a Subscriber acting on behalf of a client must obtain a properly completed and signed client authorisation. The client authorisation is explicit in what the client authorises the Subscriber to do (e.g. to act on a purchase of land, to lodge a lease, etc). Failure by a Subscriber to obtain and follow the client authorisation can see them being suspended or terminated from lodging documents. See ARNECC guidance note #1 for more information.

Client authorisations, could it be emailed over? And how long do we need to keep it for? (edited)

Yes, a client authorisation can be emailed to clients and they can sign it electronically. Subscribers must keep their client authorisations for 7 years.

What issues have there been with client authorisations that have shown up in audits?

Two major issues – firstly, clients not signing the client authorisation. Secondly, the transaction type not selected.

How do we prove we have control of the right to deal without a paper CT?

Establishing a client’s right to deal with the property or the transaction will require you to sight supporting evidence that links the owner or transacting party to the land e.g. rates notice; land tax assessment, utility bills etc. ARNECC has produced a comprehensive guidance on this – see ARNECC guidance note #4.

How do we prove right to deal for a new owner who recently purchased a property if they want to sell the property immediately? (They will not receive any rates notices for quite some months, or even a year - because these would have been adjusted and fully paid at settlement of the purchase).

Establishing a client’s right to deal with the property or the transaction will require you to sight supporting evidence that links the owner or transacting party to the land. A Subscriber is required to take reasonable steps in verifying a right to deal. It is possible to rely on loan documentation or any mortgage granted by the mortgagor. A title search should be obtained to check who is named as a registered interest holder. ARNECC has produced a comprehensive guidance on this – see ARNECC guidance note #4.

If a client brings in an old paper DOM can we still register through residual documents and if so how do we prove right to deal for the individual?

No. A Discharge of Mortgage can only be lodged electronically. This mandate has been in place since 1 July 2019. See the Schedule of eDealings and our news update on the Cancellation of CTs for more information.

Establishing a client’s right to deal with the property or the transaction will require you to sight supporting evidence that links the owner or transacting party to the land e.g. rates notice; land tax assessment, utility bills etc. ARNECC has produced a comprehensive guidance on this – see ARNECC guidance note #4.

Will the Australia Post VOI form be sufficient verification of identity after 11 October?

Yes, if the VOI was carried out on behalf of a Subscriber.

Is VOI completed at Australia Post sufficient for LRS identity purposes? (edited)

Yes, if the VOI was carried out on behalf of a Subscriber.

Do we still need to hold title deeds for a period of 7 years for dealings which were effected prior to 11 October 2021?

If a CT was relied on to establish the right to deal in land prior to 11 October 2021, that CT must be retained for at least 7 years in accordance with the Participation Rules. See ARNECC guidance note #5 retention of evidence.

Will PEXA be automatically updated from 11 October?

Yes, PEXA will update on 11 October so that no CoRD consents are required to be given.

If the settlement was completed through PEXA, however the purchaser's solicitor found out that the purchase price was inserted incorrectly after the title was registered online. How can we rectify the purchase price on the title?

You’ll need to contact NSW LRS and provide them with evidence that the purchase price was recorded incorrectly.

What replaces the CoRD if anything?

There will be no replacement for CoRD/eCTs or CoRD Holder Consent.

Is it true that all homeowners are going to lose their properties in this process?

No. The changes will not impact a person’s ownership of their home. A registered landowner’s details will still be recorded in the Torrens Register.

Will the CoRD process still continue?

No. The CoRD framework will be cancelled from 11 October 2021.

What would replace the CoRD?

There will be no replacement for CoRD/eCTs or CoRD Holder Consent.

Will the titles have a notation as to who has CoRD i.e. 'the Control of Right to Deal is held by - company name'? We've spoken quite a lot about checking the registered proprietor by doing a title search, but the registered proprietor isn't always the party with CoRD.

The concept of CoRD is abolished on 11 October, along with certificates of title. Mortgagees will no longer need to provide CoRD holder consents.

If a conveyancing matter is due to settle after 11/10 do we need to do consent?

No, CoRD holder consent is not needed from 11 October 2021, however, mortgagee consent may be required by legislation. You will need to check the legislative requirements for the transaction.

Can the mortgagee enter the landlord's workspace to give consent to a lease? (edited)

No. The consent must be given in writing which is uploaded by the Subscriber acting for the landlord.

How does this impact first mortgagees? Currently first mortgagees need to consent by way of a CoRD to a second registered mortgage. Will LRS need to sight a mortgagee consent before registering a 2nd mortgage? Is there a strike off process for 2nd mortgages?

CoRD holder consents are abolished from 11 October. However, a written consent can be uploaded if the parties want to. For example, the first mortgagee may give consent because the terms of the mortgage require it. This is a contractual matter between the parties and not policed by the Registrar General.

Is mortgagee consent still required for strata plans and deposited plans of subdivision?

Yes, the changes on 11 October doesn’t affect the requirement for consent on plans.

Will mortgagee consent be required for registration of subsequent mortgages?

No. However a consent can be uploaded if the parties want to. For example, the first mortgagee may give consent because the terms of the mortgage require it. This is a contractual matter between the parties and not policed by the Registrar General.

Will there be an RP form for mortgagee consent or is it just written consent on letterhead?

Its is just a written consent on letterhead.

Can lawyers on behalf of the bank provide consent on the lawyer’s letterhead?

Yes, they can if it is clear why the banks legal representative is providing consent on their client’s behalf. (i.e. “We act for XYZ bank and have been instructed to provide consent etc”).

So does a first mortgagee no longer have to consent to the registration of a second mortgagee? Does this just cease to be a requirement?

Correct. Second (or subsequent mortgages) no longer require CoRD holder consent. However, it is important to check the terms of the first registered mortgage to ensure that their consent is not required. This is a contractual matter between the mortgagee and the borrower.

Is there a particular form (or prescribed) of a letter that the mortgagee would need to provide to a subscriber to evidence CORD consent?

CoRD consents will no longer apply from 11 October. However, if the mortgagee is required to provide written consent, then they would prepare a letter on their letter head which is uploaded with the documents that are lodged.

Is there a process for updating legislation which refers to statutory consents to register a dealing by a Housing Agency under section 18 of the Community Housing Providers (Adoption of National Law ) Act 2012 - will this paper consent be a Dealing With Exception?

Yes, this is usually a paper Request form. Post 11 October, the Request will be completed in the normal manner, scanned and uploaded into the PEXA workspace with the Dealing with Exception and lodged electronically.

Since mortgagee consents are attached to documents lodged within the workspace, do you still need to invite the bank as a participant?

No, you don’t need to invite the mortgagee into the workspace for the purposes of obtaining and uploading a mortgagee’s consent.

Are there RG/ ELN protections against a subscriber (fraudulently or negligently) incorrectly certifying consent to act on behalf of the registered proprietor (or other interest holder)? eg. where there is a 2 director company and the subscriber acts based on representations by one director.

If the company’s constitution requires that 2 directors must approve any action by the company, the Subscriber must ensure it doesn’t act unless it has both directors. More information can be found in ARNECC guidance note #4.

For dealings which can be electronically lodged by persons other than the registered proprietor (i.e. Request Forms) what would you need within the electronic workspace to show the registered proprietor's consent if a CoRD Holder Consent is not required?

The only occasion where a registered proprietor will not be in a transaction is when a third party has been appointed to act on their behalf (such as a guardian); or a court has ordered a dealing to be lodged.

What protections are there for a registered proprietor of a property if there isn't a requirement for them to consent to a transaction/dealing being lodged on their title? Formerly a CoRD consent would be required and would act almost as a stop gap.

The only occasion where a registered proprietor will not be in a transaction is when a third party has been appointed to act on their behalf (such as a guardian); or a court has ordered a dealing to be lodged.

Is mortgagee consent given within the workspace by the mortgagee or does the practitioner need to get the consent separately from the mortgagee and then upload it into the workspace?

The practitioner will be required to get consent separately from the mortgagee and upload it in the workspace.

It was mentioned that we need written consent from a mortgagee to register along with the CoRD - if we are using PEXA, is the bank's signing and approval not considered consent?

CoRD consent is not required after the 11 October. However, there are certain dealings that require the mortgagee written consent (i.e. letter of consent on their letterhead). The dealings requiring mortgagee consent are those which deal with an easement, restrictive covenant or positive covenant. The Registrar General's Guidelines specify what dealings require a mortgagee’s written consent is required.

What happens when a mortgage is to be discharged in a DMT process. Doesn't the mortgagee still have to be present and "consent" to discharge the mortgage?

Correct. The mortgagee will be required to sign and lodge a discharge of mortgage.

Given the revocation of CR 1/2021 (required dealings exceptions), will there be an updated waiver document published to capture documents which can only be lodged as a 'Dealing with Exception' in PEXA?

Yes, the Lodgment Rules exception list will be published on the ORG website soon. An alert will let everyone know when that list is published.

Will PEXA allow for more than 20 lots now that there are no exemptions/waivers? We may have 100+ titles in a mortgage transaction and currently could rely on the waiver.

Transactions where 20 or more folios which cannot be separated can be lodged electronically using the dealing with exception process. This involves the parties completing the paper dealing, scanning it and uploading into the ELNO workspace for lodgment.

Currently compulsory Road acquisitions (Lot and DP) only become valid when individual CTs are exchanged, so what now?

Road acquisitions are unaffected by the changes on 11 October 2021. I don’t understand the significance of “exchanging CTs” – is this a requirement of legislation?

What about Owner Corporations having to lodge regular by-law changes?

Certificates of title will no longer be needed to be produced for any land dealings. All dealings, including consolidation or change of by-laws, are required to be lodged by subscribers to an Electronic Lodgment Network such as PEXA or Sympli. Subscribers are generally lawyers or licensed conveyancers.

As paper certificates of title are being abolished, where will the new digital CTs be stored? If in the future our strata plan needs to register/consolidate new by-laws, would we need to provide the Solicitor the CT, or will they gain access through a portal for the electronic copy? 

All ownership details are recorded on the Torrens Title Register. From 11 October 2021, certificates of title will no longer be required to be produced for any land transactions or for the lodgment of any dealings, including those related to by-laws. A person, such as your solicitor, could conduct a title search of the Torrens Title Register for information about property ownership and interests.

You have not addressed the most common form of dealing changes - the update of by-laws against the common property title. Please address this with management.

What about the by-law lodgements against Common Property title?

These can be lodged electronically by a subscriber.

Please address the issue of regular by-law changes required for renovations in strata titled buildings. Why is a solicitor required to lodge this type of dealing? Can these be added to the exceptions?

Change of by-laws is electronically available to be lodged. Only subscribers are eligible to lodge dealings electronically. Adding them to the exception list doesn’t change the fact that they still must be lodged electronically.

If our Strata Plan in the future changes Strata Managers do we need to advise anyone of this change in regards to the certificate of title, if so how do we go about this?

ORG has undertaken a comprehensive communications campaign to ensure everyone knows about the cancellation of certificates of title. We consulted NSW Fair Trading who in turn have sent communications to common industry groups, including those that work in strata management. If you require further information about strata managers, please contact NSW Fair Trading.

What to do where a strata scheme has a lost certificate of title for the common property and needs to consent to plans already lodged at LRS? (edited)

Does a solicitor/licenced conveyancer now need to deal with lodging a new strata plan for a development instead of the surveyor lodging it?

The changes on 11 October have no impact on the lodgment of plans. These continue as per the requirements today.

Who has the right to verify in a strata scheme where there is a common property title?

The strata manager is normally the person who can establish the right to deal. Otherwise, someone appointed by the owners corporation to act on its behalf.

If we hold signed paper leases can we lodge these as ‘Dealing with Exception’ after 11 October 2021?

Yes, if the lease is signed before 11 October these may be lodged with the Dealing with Exception.

Is is true that all home owners will only be recognised as on lease for 100 yrs? And not as owners of properties on this changes? When we’ve paid for our properties with our hard earned incomes?

No, that’s not correct. There is no time limit of ownership for land in NSW, known as freehold land. You may be referring to land in the Australian Capital Territory, which is leasehold land and may have a time limit.

How do we lodge leases with Sydney lockdown? Via post or DX?

Preferably you should be lodging leases electronically. If you need to lodge it in paper you must contact NSW LRS for arrange delivery.

What is the form of the landlord's lawyer's execution certification when registering a lease?

Please refer to the Registrar General's Guidlines.

Will lease folios be electronically tradeable or will we still need to usual the miscellaneous document process?

Lease folios are electronically tradeable.

For registration of leases after 11 October 2021, if the title is unencumbered, do we just lodge the lease for registration on its own?

Yes, as you would today if it is in paper.

Have you resolved the issues regarding to Retirement Village leases and surrenders of lease?

I’m not sure what the “issues” you refer to are – other than to say that they are electronically enabled and can be dealt with through PEXA.

The LRS is closed at the moment and my understanding is that Sydney agents aren't able to lodge documents without approval by LRS and an appointment. How can we lodge in paper prior to 11 October? Are we able to send documents (ie. surrender of leases etc) directly to LRS?

Please contact NSW LRS to arrange an appointment to lodge documents in paper.

Regarding the lease, if there is an amendment of the signatory's name, do we have to initial next to the amendment in order to register the lease with NSW LRS via PEXA?

Yes.

How do you lodge a Transfer for part of land using e-conveyancing? Can you do this in PEXA before 11 October?

Currently a part land transfer is out-of-scope for eConveyancing. If you are intending to lodge the part land transfer before 11 October, you can lodge in paper; or use lodge it electronically using the “Dealing with Exception” dealing form (attaching the scanned paper dealing). After 11 October, you must lodge it using the “Dealing with Exception” form.

How do Auto-consol titles work? Will each lot automatically get it's own separate eTitle? Or will you still need to do a request for separate eTitle if one of the properties are to be sold?

You can Request that each folio be separated if required.

Will Auto-consol titles still exist? Or will they now revert to simply being recorded/searched as the Lot in the DP?

Auto-consols will still exist. The folio will remain the same as that recorded on a CT.

What will be the process with Auto-consols? If selling only one lot will we still need to register request for issue of separate title?

After 11 October CTs will no longer issue. However, the parties can still request separate folios of the Register be created which can be viewed via a title search.

What will be the arrangements for pending Old System conversion actions (departmental ones) (i.e - you have commenced the conversion but the landholder hasn't verified the statement of title particulars form back to you - and the title is currently in limbo and may not be correctly recorded)?

From 11 October, a CT is no longer required for conversion actions, however, the Statement of Titles particulars form will still be required. The only difference is that there will be no requirement to enter the delivery details on the form.

Do any pockets of Old System title remain in NSW?

Yes, around 1% of land in NSW is still under Old system title (mainly located around the central west).

Are old system titles and Crown Lands outside the new regime?

Yes, any dealings with these titles can continue to be lodged in paper after 11 October. However, these dealings can be lodged electronically if you wish to, using the electronic dealing form known as “Miscellaneous dealing”.

Over-the-Counter paper lodgments not possible during COVID lockdown. Do you anticipate this will change before 11 Oct?

NSW LRS is accepting paper lodgments by appointment only due to the state-wide lockdown orders. Please see the NSW LRS website for more information.

How do we lodge paper dealings between now and the cut off date? The LRS office is currently not open? (edited)

NSW LRS is accepting paper lodgments by appointment only due to the state-wide lockdown orders. Please see the NSW LRS website for more information.

If a document is lodged in paper prior to 11 October but not under examination by 11 October will it still be acceptable?

Yes.

What happens with WALs?

Will we able to lodge WAL transfers electronically?

What about Water Access Licence WAL CTs, are they part of this or will they remain as paper?

Will WAL's be able to be lodged through ELNO shortly. I am told not likely and only dealing you can send through the post, is this correct?

What about WAL CT & Transfers - do these have to be created in paper and attached to electronic dealing?

Dealings with water must still be lodged in paper even after 11 October. We are still in talks with Water NSW about bringing over water access licences to eConveyancing, but that won’t be available for quite some time.

If settlement involves a WAL can the land transfer, DM etc still be lodged via paper with the WAL transfer documents?

Except for the WAL dealings, all other dealings must be lodged electronically.

Hi, will the cancellation include certificates of title for coal rights and certificates of title for water licences?

Yes for coal rights; no for water licences. We are still in talks with Water NSW about bringing over water access licences to eConveyancing, but that won’t be available for quite some time.

Will there be exceptions to lodgments over the counter in circumstances wherein transactions can't proceed electronically? I.e titles not valid for electronic lodgment (Water access licenses for example). There are currently some transactions or titles that aren't valid for electronic lodgment.

Any dealing that is out-of-scope for eConveyancing must still be lodged electronically using the Dealing with Exception process. Essentially the paper dealing is completed, scanned and uploaded as a pdf.

Does 100% eConveyancing include Water transfers?

No. Dealings with water must still be lodged in paper even after 11 October. We are still in talks with Water NSW about bringing over water access licences to eConveyancing, but that won’t be available for quite some time.

As surveyors lodging plans of subdivison, if our clients are unencumbered how do we consent to the use of title? Or is production of title no longer a requirement? Also mortgagees would normally sign the admin sheet & 88B is this sufficient for consent or is a letter required?

Nothing from 11 October changes any process in relation to plan lodgment or who consents to, or signs plans.

You have stated that a title is no longer required to lodge a plan, but a plan as of the 11 October does not need to be lodged electronically. How does lRS know that the signatures are genuine on the admin sheets when lodged by hand?

This is no different to today. The changes from 11 October do not affect the lodgment requirements of plans.

PHL Surveyors - Lodging party for DPs & SPs previously when clients held unencumbered titles we were able to post original titles directly to NSW LRS. What will be the procedure for paperless titles? Will clients be required to use a solicitor or conveyancer to produce titles for plan registration?

From 11 October 2021, certificates of title will not need to be produced for the registration of any document, including plans.

How do surveyors lodge plans? Do they now need to be lodged by solicitors/conveyancers?

Plans will still need to be lodged via ePlan – see the NSW LRS website for more information. The difference is that certificates of title will no longer need to be produced to lodge plans. Of course, the necessary consents are still required as normal for plan lodgments.

Does the information notice get provided immediately after settlement? And is this through PEXA?

It will be provided electronically to the subscriber to their nominated email.

What is an Information Notice?

The Information Notice is merely the current registration notice, with further information of the type of dealing that was registered. An Information Notice is not akin to a title search.

How do we get the information notice? Is this sent by email and to the individual practitioner who lodged the dealing?

It will be provided electronically to the subscriber.

Will the information notice be provided to the subscriber electronically after registration or will it be in paper form?

It will be provided electronically to the subscriber.

With the information notice with name on the title. So does this mean that an emailed title search of ownership is proof of ownership if that is printed and kept in security box/safe?

The Information Notice does not contain the owner’s name. It is merely the current registration notice, with further information of the type of dealing that was registered. An Information Notice is not akin to a title search.

When a plan of subdivision is registered is an information notice issued, and is that issued to the surveyor or to the PEXA subscriber? Is the information notice issued for each title under the plan? Can you please explain further details on the information notice.

An example of an Information Notice will on the ORG website shortly. Whoever lodged the plan will receive the Information Notice (usually the surveyor).

Are the standard requisitions on title going to be updated?

There will no longer be a requisition for failure to produce a certificate of title after 11 October.

If something is lodged through an ELNO that needs manual examination will there be something flagged in the system to prevent the auto-registration of a later lodged dealing? I had a request awaiting examination and a week later a priority notice was lodged and auto-registered causing a requisition.

The Title Activity Check (TAC) will show what has occurred on the title since the dealing was lodged. Anything that is lodged and for registration can be lodged. The changes on 11 October have no effect on priorities and I suggest you speak to NSW LRS as to why this has occurred.

Do other states/territories have similar changes in place?

Yes. South Australia, Queensland, ACT and soon WA have abolished their paper certificates of title.

Given the slew of poor implementation by government and industry, how come we aren’t doing a cutover period (which the consumer and the government are consent to) so that if there are any issues that occur during the cutover, people can still rely on the paper while issues are resolved?

While transitional arrangements were considered, the nature of conveyancing transactions means that hard cut-off dates where necessary to give certainty.

Will there be an extension of time beyond 11 October 2021 to lodge paper dealings over the counter due to the lock down?

Unfortunately, no. The chosen date was made before the lockdown period began, and once the date had been announced legally and for technical reasons, we can’t change it.

So are the registration fees being reduced to reflect the cost savings by the LRS?

No. The fees are regulated and increase each year by CPI.

After registration why do we have to pay for a title search - we used to get a CT as part of the registration fee?

Even when certificates of title were issued, the advice is always to do a title search for the conclusive proof of ownership. An Information Notice will issue after the registration of dealings after 11 October, confirming the dealings that were registered.

With 100% eConveyancing will the NSW LRS review costs?

This is a matter for NSW LRS.

Does this mean any future purchase of a home and/or land is not a good investment?

No, nothing changes apart from the fact that from 11 October 2021, all registered owners will need to engage a Subscriber to an Electronic Lodgement Network Operator (lawyer, registered conveyancer or settlement agent) in order to deal in their property. Most registered proprietors already do this.

Willl it cost me to have it changed to digital?

There is no need to change the CT to a “digital one”.

A paper title has 69 Registered Proprietors. 85% hold as tenants in common in various shares. Which Registered Proprietor will have the right to deal with the title when the paper title is abolished? Can any one Proprietor deal with the title without the knowledge of the other Proprietors?

This scenario is no different with or without a CT.

With a private individual who provides vendor finance to a purchaser thereby having a mortgage over the property what documentation are they provided to confirm they are the CoRD holder?

CoRD is abolished after 11 October 2021. The registration of the mortgage secures the mortgagee’s interest in the property.

What happens if you have a discharge of mortgage on paper with the CT in safe custody but the vendor does not want to registered it until the property is sold. How do we deal with it when the property is sold in say 10 years time?

If the client still has the paper discharge of mortgage properly executed, then it can still be lodged using the Dealing with Exception process. This essentially means scanning the paper dealing and uploading it via PEXA.

What happens if a client is provided from their bank a paper title and paper discharge? How do you register the paper discharge?

If the client still has the paper discharge of mortgage properly executed, then it can still be lodged using the Dealing with Exception process. This essentially means scanning the paper dealing and uploading it via PEXA.

May have been answered? if i have a mortgage now and i discharge in a few years time, does the bank need to notify me do i want the CT?

After 11 October 2021 there will no longer be paper certificates of title issued. It is unlikely that the bank will be holding the paper certificate of title, but you can check with them.

Is the process with a discharging mortgagee in PEXA going to change in any way?

No. There may be a small number of scenarios where the discharge of mortgage is lodged using the Dealing with Exception process. This essentially means scanning the paper dealing and uploading it via PEXA.

What about where we hold an old paper discharge of mortgage which hasn't been registered on the title?

If the client still has the paper discharge of mortgage properly executed, then it can still be lodged using the Dealing with Exception process. This essentially means scanning the paper dealing and uploading it via PEXA.

What happens after 11 October with a paper Discharge of mortgage issued by the bank a number of years ago where the mortgagors have no current interaction with the bank?

If the client still has the paper discharge of mortgage properly executed, then it can still be lodged using the Dealing with Exception process. This essentially means scanning the paper dealing and uploading it via PEXA.

What happens where a lender sometimes only held CT as security without registering a mortgage?

Unregistered mortgagees and others holding CTs as security will need to act preferably before 11 October to secure their interest. This could be in the form of a caveat or priority notice if they are intending to lodge a mortgage.

What happens with Qualified and Limited titles where the chain of title is still in existence?

Nothing changes – the parties are still required to keep and furnish the chain of titles when dealing with qualified titles. Regarding Limited titles, the limitation is removed when a full plan of survey is lodged.

What happens with the dual entitlement press process for boundary adjustments?

From 11 October 2021, parties will not need to produce their CTs/CoRD when lodging rectifying transfers and letters of authority will no longer be required.

How will boundary realignments work?

No change, other than parties don’t need to produce their CTs to lodge their rectifying transfers.

How will this impact Wills?

No impact, other than the executor or administrator doesn’t have to find the CT (which in a lot of estate matters is lost or can’t be found).

What will happen if you are acting for an executor or beneficiary transferring title? Will the copy of probate or letters of administration be sufficient or will there be greater evidentiary requirements to satisfy?

The evidence supporting the right to deal is up to the Subscriber. However, the copy of the probate or letters of administration usually id sufficient to establish the executors/administrators right to deal.

I have power of attorney for my mother who is in a home suffering with dementia, can I put the house in my name?

You’ll need legal advice regarding your situation with your power of attorney.

I have power of attorney, can I put the house in my name? My mum is in a home with dementia, I need to sell to pay nursing home. Also to register POA I was told to post original POA as office isn't open, is this correct? If so, I'm concerned about the safety of my POA. (edited)

NSW LRS are accepting some documents by post; alternatively, you can make an appointment if you wish to physically lodge the power of attorney. Another option is to engage the services of a lawyer to electronically lodge the power of attorney.

Will there be more training sessions for legal practitioners and conveyancers?

Both PEXA and Sympli provides training on their respective platforms.

Will there be webinars for lawyers dealing with technical and legal queries in relation to the change to electronic conveyancing particularly in relation to dealings other than transfers?

Both PEXA and Sympli provides training on their respective platforms.