econveyancing INFORMATION SESSION 12 March 2015
econveyancing update ects Impacts of ect CoRD Holder Consent Agenda elodgments and paper CTs 2
econveyancing Information Session March 2015 econveyancing UPDATE 3
econveyancing terms Operating Requirements ARNECC ECNL Participation Rules Subscribers 4
ARNECC Australian Registrars National Electronic Conveyancing Council Established by an Intergovernmental Agreement Consists of Registrar of each jurisdiction or their nominee 5
ARNECC s role is to: ARNECC Coordinate the regulation of electronic conveyancing Advise on and oversee the National Law and the implementation of electronic conveyancing Develop Model Operating Requirements and Model Participation Rules Pursue consistent business practices 6
ECNL Electronic Conveyancing National Law National Applied Law Scheme - NSW host jurisdiction Electronic Conveyancing (Application of National Law) Act 2012 (NSW) commenced 1 January 2013 Has been adopted or mirrored in 6 other jurisdictions 7
Operating Requirements Requirements that apply to an Electronic Lodgment Network Operator (e.g. PEXA) Determined by the RG (based on model determined by ARNECC) Compliance monitored by ARNECC and demonstrated through Independent Certifications and Self Certifications 8
Participation Rules Rules that apply to Subscribers Determined by the RG (based on model determined by ARNECC) Compliance monitored by the RG (and PEXA) Includes rules about: Eligibility Criteria Client Authorisation Security and Integrity Verification of Identity Certifications 9
Only Subscribers to PEXA can lodge edealings Types of Subscribers: Subscribers Principal Subscribers (banks) represent themselves Representative Subscribers (Solicitors and Licensed Conveyancers) represent other parties Responsible Subscriber role = Lodging Party 10
National Electronic Conveyancing Legal Framework Intergovernmental Agreement for a Electronic Conveyancing National Law Electronic Conveyancing National Law Operating Requirements (ARNECC Model Operating Requirements Australian Registrars National Electronic Conveyancing Council (ARNECC) Operating Agreement Participation Rules (ARNECC Model Participation Rules) Participation Agreement 11
Progress - NSW Release 1 8 October 2013 - Mortgages and Discharges - Big 4 banks + others Release 2 14 November 2014 - Transfers, Caveats & Withdrawals of Caveat - Representative Subscribers - Electronic settlement Over 4000 dealings lodged electronically Approximately 170 Subscribers signed up 12
Progress - National PEXA also operating in VIC, QLD and WA VIC Transfers in February 2015 QLD and WA Transfers in May 2015 Other jurisdictions to follow 13
Future Conveyancing Reform Both electronic and paper conveyancing will continue in parallel for some time. Accordingly, it is proposed to align paper and electronic conveyancing processes wherever possible 14
Purpose The alignment of paper and electronic processes is intended to: Provide one set of requirements for both lodgment channels Facilitate smooth transition between electronic and paper processes Reduce the complexity of dealing with two separate systems and requirements Reduce costs to the conveyancing industry 15
Purpose Additionally alignment will: Minimise inconsistencies between NSW and other jurisdictions Maintain or improve security in conveyancing and integrity of the Torrens Register 16
Summary of Proposals Client Authorisations Verification of Identity (VOI) requirements Certifications Priority Notices National Mortgage form Phasing out Certificates of Title 17
econveyancing Information Session March 2015 ect 18
Introduction Paper CT not compatible with elodgment Real Property Act amended late 2013 Option to request ect for restricted parties s33aa and 33AB ect has replaced the term Optional No-CT Alternative safeguards required to prevent fraud when a paper CT is not issued 19
ect Eligibility Currently ect is available: to APRA regulated financial institutions, who are subscribers to PEXA or represented by a subscriber to PEXA, and who are the first registered mortgagee. 20
ect Eligibility Currently ect is only available following registration of new electronic mortgages No mortgage on title CT must issue 21
Right to Deal Important Concepts The Right to Deal is the inherent entitlement that a registered proprietor has to deal with their land e.g. to transfer, mortgage or lease. Control of the Right to Deal (CoRD) A party has CoRD when that party has authority to consent to the registration of a subsequent interest in land. 22
Paper Evidence of CoRD Legitimate possession of the paper CT i.e. registered proprietor of unencumbered land or the first registered mortgagee Electronic ect i.e. a CoRD record on the Register 23
Providing Consent How does a party with CoRD provide consent to a transaction? paper CT: hand over CT at settlement, or lodge or produce the CT to LPI ect: CoRD Holder Consent lodged electronically via PEXA 24
econveyancing Information Session March 2015 IMPACTS OF ect 25
Impacts of ect Changes to title searches Previous edition of the CT is cancelled CT not handed over at paper (or electronic) settlement CT not produced to LPI for subsequent transactions CoRD Holder Consent lodged through PEXA in lieu of CT 26
Title Search ect (CoRD Record) 27
Historical Search ect (CoRD Record) 28
Conveyancing Process Paper Contract Preparation Contract Preparation Exchange Exchange Dealings With Certificate of Title (CT) Settlement Preparation Instrument preparation Duty payments Settlement Preparation Instrument preparation Duty payments Lodgment of CoRD Holder Consent LPI CT Inquiry Settlement Lodgment & Registration Document exchange Lodgment Financial settlement Examination Registration With ect (CoRD record) Settlement Document exchange (dealings only, no CT) Financial settlement Lodgment & Registration Lodgment (dealings only, no CT) Examination Registration Post Registration Publication Secure title printing and delivery Post Registration Publication Secure title printing and delivery 29
Paper Settlement Preparation With ect Settlement period Details about all the dealings and incoming parties for settlement need to be provided to the CoRD holder 30
Paper Settlement Preparation With ect Settlement period CoRD Holder Consent must specify: ALL dealings in the settlement case, not just the mortgage being discharged Parties receiving under each of the dealings 31
Paper Settlement Preparation With ect Settlement period Prior to settlement, all parties should perform LPI CT Inquiry Confirm that consent has been provided for ALL dealings in the settlement transaction 32
Attending Paper Settlement With ect Outgoing FI does not hold a CT The lodging party will lodge the dealings only LPI will automatically connect the CoRD Holder Consent once lodged 33
econveyancing Information Session March 2015 CoRD HOLDER CONSENT 34
CoRD Holder Consent For edealings - Consent is with the dealings For paper dealings - Consent is lodged separately (standalone) Different consent types depending on the transaction: 1. Transacting Party Consent 2. Third Party Consent 35
Transacting Party Consent CoRD holder is a party to the transaction CoRD is passed over at settlement Examples: Discharging mortgagee for a DTM Discharging mortgagee for a refinance 36
Transacting Party Consent Prior to paper settlement - LPI CT Inquiry 37
Third Party Consent Similar to the concept of production CoRD holder is not a party to the transaction Provided to enable registration of a subsequent transaction CoRD holder retains CoRD after registration 38
Examples: Third Party Consent Deposited plan Strata plan Lease Second mortgage with different mortgagee 39
Third Party Consent Confirm consent through LPI CT Inquiry 40
CoRD Holder Consent A CoRD Holder Consent must specify details of the incoming transaction New Request for Consent eforms used to initiate lodgment of a CoRD Holder Consent Available on the Registrar General s Directions with instructions 41
Request for Consent Process 1. Confirm there is an ect 2. Complete the Request for CoRD Holder Consent eform 3. Vendor or owner s representative submits eform to the CoRD holder 4. Check the CoRD holder consent 5. Contact the CoRD holder if details are incorrect 42
Request for Consent Process 1. Confirm there is an ect 43
Request for Consent Process 2. Complete the Request for CoRD Holder Consent eform Paper settlement and ect Subsequent dealings and plans Request for Transacting Party Consent Request for Third Party Consent Purchaser or their representative may partially complete and forward to vendor/representative Cl 4.1 Contract for the Sale and Purchase of Land (2014 Edition) Vendor or their representative may complete Request with details provided by purchaser/representative Example 1 Practitioners, surveyors or registered proprietors may complete Request Example 2 44
Request for Consent Process 3. Vendor or owner s representative submits eform to the CoRD holder Paper settlement and ect Vendor or representative submits Request to CoRD holder The Request should ideally be submitted with the Discharge Authority Subsequent dealings and plans Owner s representative submits Request to CoRD holder The Request should be submitted prior to lodgment of the subsequent dealing or plan Incomplete and/or incorrect requests may lead to processing and settlement delays 45
Request for Consent Process 4. Check the CoRD holder consent Paper settlement and ect Subsequent dealings and plans 46
Request for Consent Process Incorrect information in the request must be amended 5. Contact the CoRD holder if details are incorrect E.g. incorrect dealing types or party names Contact the CoRD holder to arrange an administrative amendment with LPI 47
Request for Consent Process LPI will only register dealings specified in the consent 5. Contact the CoRD holder if details are incorrect LPI will requisition the lodging party if the dealings and parties cannot be matched 48
Can only be: Withdrawing Consent legitimately withdrawn if settlement has not and will not take place withdrawn by the consenting party or their representative Cannot be withdrawn through PEXA Can only be manually withdrawn at LPI 49
LPI requires: Withdrawing Consent Written evidence: identity of the consenting party or subscriber land title reference(s) transaction(s) consented to parties involved as specified in the CoRD Holder Consent. Statutory Declaration: Settlement has not and will not take place All parties involved have been notified of the withdrawal 50
Key Points A CoRD Holder Consent is an electronic document Can only be lodged through PEXA Cannot be lodged in paper If there is an ect (CoRD Record), a CoRD Holder Consent must be lodged before a paper settlement 51
Key Points A CoRD Holder Consent protects the incoming transferee and mortgagee Provides assurance that CoRD will pass at settlement A CoRD Holder Consent must specify details of the incoming transaction New Request for Consent eform helps facilitate the consent provision process 52
Key Points Perform CT Inquiry before settlement A CT does not need to be issued for settlement purposes 53
Future ect may issue following registration of paper dealings and plans Possible bulk cancellation of CTs ect may be available to non-apra mortgagees CTs may be dispensed with altogether 54
Additional Information LPI Fact Sheet - Attending a paper settlement when the Certificate of Title (CT) is in electronic format LPI Circular - 'Optional no Certificate of Title': practice changes for settlement and lodgment of dealings and plans LPI CoRD Video RG s Directions information about CoRD and CoRD Holder Consent requirements Request for CoRD Holder Consent eforms 55
econveyancing Information Session March 2015 elodgments AND PAPER CTs 56
elodgment & Paper CTs Paper CT not compatible with elodgment However, paper CT does not need to be converted to ect Paper CT not handed over for electronic settlement CoRD holder retains paper CT as part of the evidence for the electronic case 57
elodgment & Paper CTs Electronic CoRD Holder Consent lodged with edealings in lieu of paper CT CoRD Holder Consent requires: Edition No. Edition Date CAC 58
CAC CTs Certification Authentication Code Randomly generated number Only exists on the printed CT On paper CTs issued after 1 January 2004 Compatible with elodgment because can be remotely verified electronically by LPI 59
Non-CAC CTs Paper CTs issued before 1 January 2004 Encumbered non-cac CTs can be used for electronic transactions because they are considered a low security risk As the mortgage must have been registered prior to 1 January 2004 any fraud against the land should have been discovered 60
Unencumbered Non-CAC CTs Unencumbered CTs issued prior to 1 January 2004 cannot be used for elodgment These CTs need to be produced to LPI for verification A lodging party may choose to: produce the CT and then lodge the transaction electronically by referencing the production receipt number in the CoRD Holder Consent, OR lodge the entire transaction in paper 61
CONCLUSION www.lpi.nsw.gov.au/about_lpi/national_econveyancing_nsw Sign up to newsletter, inquiries econveyancingnsw@lpi.nsw.gov.au ARNECC http://www.arnecc.gov.au/ 62
econveyancing Information Session March 2015 QUESTIONS 63