Electronic conveyancing

Providing efficient settlement of property transactions

The Council of Australian Governments (COAG) decided that National Electronic Conveyancing (NEC) should be implemented to provide an efficient and effective national platform for the following processes:

  • electronic settlement of real property transactions
  • electronic preparation and lodgment of documents with land registries
  • electronic payment of associated duty and tax obligations.

NEC introduces a more efficient and convenient way of settling property transactions and lodging documents at Landgate. It augments the paper channel for property transactions and does not replace it.

Property Exchange Australia Ltd (PEXA) provides and operates the first Electronic Lodgment Network(ELN). In June 2014, PEXA successfully implemented release 1 of NEC in Western Australia, with mortgages and discharges of mortgage becoming eligible for electronic lodgment at Landgate.

Release 2 was implemented in May 2015 and enabled caveats and withdrawals of caveat to be lodged electronically through the PEXA ELN. In June 2015, transfers became available for electronic lodgment.

The May/June 2015 release marks the first time that settlement agents, legal practitioners and financial institutions are able to lodge mortgages, discharges of mortgage, transfers, caveats and withdrawals of caveat electronically in Western Australia.

Further information about PEXA, how electronic conveyancing operates and how to become a subscriber can be found by visiting the PEXA website.

For all further enquiries, please call Customer Service on +61 (0)8 9273 7373 or 1300 556 224 or email customerservice@landgate.wa.gov.au.

The move to paperless conveyancing

In August 2016, Landgate introduced changes to the lodgement process for mortgages and discharge of mortgages affecting mortgagees, their conveyancers, lawyers and lodging agents.

The next step of the process towards paperless conveyancing is to require additional eligible document types to be lodged electronically.

On 11 October 2016, Landgate published a discussion paper inviting comments on a proposal to require all eligible land registry documents to be lodged electronically.  Landgate held a series of workshops and information sessions  in October and November and received a number of written submissions.

Following analysis of the feedback and further discussions with key stakeholders, the Registrar of Titles announced her intention to require all eligible land registry documents to be lodged electronically in a phased implementation commencing 1 August 2017. A link to the Customer Information Bulletin can be found in the list below.

Document name SizeFormat
Registrar Requirements: Mandate Lodgement Practices for Certain Discharge and Mortgage Documents 0.7MB PDF
CIB 289 Electronic lodgement of eligible documents Not applicable  HTML
Discussion paper 0.2MB PDF
Eligible documents list 0.2MB PDF

WA Participation Rules

Users of NEC (referred to as subscribers) must observe the Participation Rules.

Section 23 of the Electronic Conveyancing Act 2014 (ECA) allows the Registrar of Titles (the Registrar) to determine the Participation Rules relating to the use by subscribers of an Electronic Lodgment Network (ELN).

In determining the Participation Rules, ECA s24 requires the Registrar to have regard to the desirability of maintaining consistency with any model provisions. On 10 September 2015, the Australian Registrars' National Electronic Conveyancing Council (ARNECC) published Model Participation Rules Version 3 (MPRv3).

WA Participation Rules Version 3.1

WA Participation Rules Version 3.1 (WAPRv3.1)  [PDF 2.3MB] have been prepared having regard to MPRv3.

WAPRv3.1 came into effect in Western Australia on 15 January 2016 following publication on Landgate’s website on 14 January 2015. WAPRv3.1 is identical to WAPRv3 apart from references to version 3 / 3.1 and the commencement date. WAPRv3.1 was implemented due to an administrative variance with the implementation of WAPRv3.

Previous versions of the Participation Rules can be found in the Versions tab below.

WA Operating Requirements

An operator of an ELN must observe Operating Requirements.

Section 22 of the Electronic Conveyancing Act 2014 (ECA) allows the Registrar of Titles (the Registrar) to determine, in writing, the Operating Requirements for:

(i) the operation of an Electronic Lodgment Network Operator (ELNO); and

(ii) the provision and operation, by an ELNO, of an Electronic Lodgment Network.

In determining the Operating Requirements, ECA s24 requires the Registrar to have regard to the desirability of maintaining consistency with any model provisions. On 10 September 2015, the Australian Registrars' National Electronic Conveyancing Council (ARNECC) published Model Operating Requirements Version 3 (MORv3).

WA Operating Requirements Version 3.1

WA Operating Requirements Version 3.1 (WAORv3.1) [PDF 2.2MB] have been prepared having regard to MORv3.

WAORv3.1 came into effect in Western Australia on 15 January 2015 following publication on Landgate’s website on 14 January 2016. WAORv3.1 is identical to WAORv3 apart from references to version 3 / 3.1 and the commencement date. WAORv3.1 was implemented due to an administrative variance with the implementation of WAORv3.

Previous versions of the Operating Requirements can be found in the Versions tab below.

Under section 27(1) and (2) of the ECA, a waiver from the obligation to comply with a provision of the participation rules and the operating requirements may be granted if it is reasonable in all the circumstances.

A list of the waivers which have been granted is available in the table below.

Waivers No. Brief description Date
2016    
Participation rules waiver PR1/2016 WA Participation rules version 3.1 28 January 2016
Operating requirements waiver OR1/2016 WA Operating Requirements Version 3.1 28 January 2016
Participation rules waiver PR2/2016 Subscriber/Identity Agent Certification 19 February 2016
Operating requirements waiver OR2/2016 Identity Agent Certification 19 February 2016
Participation rules waiver PR3/2016 Non-ADI ACL Holder Subscriber Insurance 1 September 2016
Participation rules waiverPR4/2016Non-ADI ACL Holder Subscriber Insurance18 November 2016
    
2015    
Operating requirements waiver OR1/2015 ELNO - Insurance 6 June 2015
Operating requirements waiver OR2/2015 ELNO - Subscriber Compliance 6 June 2015
Operating requirements waiver OR3/2015 PEXA - Independent Expert 6 June 2015
Participation rules waiver PR1/2015 Subscribers - VOI Timing 6 June 2015
Participation rules waiver PR2/2015 Certifications 19 November 2015
Operating requirements waiver OR4-2015 Subscriber Verification of Identity 17 December 2015
    
2014    
Operating requirements waiver OR1/2014 Property Exchange Australia Ltd 13 June 2014
Participation rules waiver PR1/2014 Subscribers 13 June 2014
WA Participation rules version Effective date
WA Participation rules version 3.1
(WAPRv3.1 is identical to WAPRv3 apart from references
to version 3 / 3.1 and the commencement date. WAPRv3.1
was implemented due to an administrative variance
with the implementation of WAPRv3.)        
15 January 2016
WA Participation rules version 3
(For national consistency, these participation rules are
referred to as WA Participation Rules Version 3. There is
no WA Participation Rules Version 2. The first version of
the participation rules is referred to as the Participation Rules.)
9 November 2015
Participation rules          18 March 2014
WA Operating requirements version Effective date
WA Operating requirements version 3.1
(WAORv3.1 is identical to WAORv3 apart from references
to version 3 / 3.1 and the commencement date. WAORv3.1
was implemented due to an administrative variance 
with the implementation of WAORv3. )        
15 January 2016
WA Operating requirements version 3
(For national consistency, these operating requirements are
referred to as WA Operating Requirements Version 3. There is
no WA Operating Requirements Version 2. The first version of
the operating requirements is referred to as the Operating Requirements.)        
9 November 2015
Operating requirements 18 March 2014

Disclaimer: these FAQs are intended to act as a general guide and not as legal advice. They are provided in good faith and believed to be accurate at the time of publication. They are provided on the basis that you will be responsible for making your own assessment of the contents and that they areappropriate for your particular circumstances. If you have any issues of a legal nature, you should consider seeking the advice of an independent legal practitioner who is experienced in property matters.

General

Will the current paper conveyancing system continue?

Yes. Landgate will continue to provide services for the lodgment and processing of paper registry documents at Perth and Midland. Landgate will also continue to provide products and services to industry through the existing MyLandgate conveyancing and other channels. 

Will Landgate be closing any of their offices?

No. Landgate will continue to provide services for the lodgment and processing of paper registry documents at Perth and Midland.

Will all Landgate instrument types be available in NEC?

No. In June 2014 financial institutions using PEXA were able to lodge discharges of mortgage and new mortgages with Landgate.

In May 2015 the range of document types will be expanded to include transfers of land, caveats and withdrawals of caveat. Certain transfer types will not be available nor will applications and other document types. For example, considerations in transfers will be limited to cash, change of tenancy and gift.

It is anticipated that the range of documents capable of electronic lodgment will be expanded over time.

Will Landgate accept lodgments submitted electronically outside current business hours?

No. Documents lodged in paper and electronically through PEXA will only be accepted during normal business hours.

Will Landgate be closing down when NEC starts in WA?

No. Electronic conveyancing is merely a new channel for arranging and conducting real property settlements. The advent of NEC does not change Landgate's position as controller of the Torrens Title Register. Western Australia is not relinquishing any powers in relation to land to any other jurisdiction or entity.

Will rate enquiries be submitted though NEC?

No. Landgate's EAS2 application will continue to provide the current rate enquiry service to industry.

Will electronically lodged documents take precedence over documents lodged in paper?

No. Documents delivered electronically to Landgate by PEXA will be processed using the same lodgment time stamp system currently used for paper lodgments. Documents will receive a dealing number from the same number set as used for paper. Electronic documents will not be received from PEXA outside normal business hours.

What happens to my settlements if Landgate computer systems are down on settlement date of for several days?

In the unlikely event of a system malfunction, settlement times would be delayed until services resume. Given that there is no physical attendance at settlement required there should be minimal impact on business operations.

What happens if I do not want to participate in NEC. Can I be forced to join?

No. Participation in NEC is not compulsory. Industry practitioners will be able to make their own business decisions regarding participation in electronic conveyancing.

What happens if other parties to the contract are not Subscribers to PEXA?

All representative parties to the contract must agree to process the transaction through PEXA. If one party declines then the transaction must proceed in paper.

Will I be able to obtain a search of an electronic document?

Yes. All documents lodged electronically will be searchable through the existing Land Enquiry function.

Will there be requisitions on electronically lodged documents?

Yes. It is possible that requisitions could be raised on electronically lodged documents. However, with the new data and business rule checks that will be carried out for an electronic conveyancing transaction, in workspace requisitions are highly unlikely to occur.

How will I know when electronic documents have been registered?

Once documents have been registered Landgate will send a message to the PEXA workspace indicated that document processing has been completed.

Who do I contact if I have questions about changes to Landgate processes?

For all general electronic conveyancing enquiries please contact a Landgate customer service representative by calling +61 (0)8 9273 7373 or 1300 556 224 or email Customer Service. For all enquiries regarding specific changes to Landgate processes as a result of electronic conveyancing please email Landgate's NEC enquiries.

PEXA

Will I be able to order title searches through PEXA?

No. Searches will not be available through PEXA. Searches will need to continue to be obtained from Landgate's Land Enquiry application or through the broker network.

Will stamp duty payments be made through PEXA?

Yes. It will be possible to pay stamp duty on transfers as a disbursement from a financial settlement. Current processes for assessing duty will remain unchanged.

Is there going to be a price differential for lodgment fees through PEXA?

No. Landgate fees will be the same for electronic and paper lodgments.

Can anyone use PEXA?

No. To ensure the integrity of the system, access will be restricted to approved 'Subscribers' who must be authorised under the laws of Western Australia to undertake conveyancing work. Subscribers will include financial institutions acting on their own behalf, licensed settlement agents and legal practitioners acting for their clients on their own behalf. Private parties representing themselves at settlement will need to use the current paper-based conveyancing process.

Who do I contact on how the PEXA system works?

Enquires relating to the PEXA system should be directed to info@pexa.com.au

Legal Framework

How do I establish that my client has "the right to deal"?

A requirement of the Model Participation Rules (MPR) is to take reasonable steps to establish the right to deal. Right to deal is the entitlement of the person to enter the conveyancing transaction. You are currently required to do this for paper transactions.

Generally when you act for a seller, the right to deal is established by ensuring that your client is the person named as the registered proprietor in the current title search.

Generally when you act for a buyer, the right to deal is established by ensuring that your client is the person named as the purchaser in the contract of sale.

Examples of documents which may assist you in establishing the right to deal include, but are not limited to:

  • Local government rates notices
  • Current land tax assessment notices
  • ASIC search
  • ARNECC is preparing a Guidance Note on the right to deal

When will the changes for the document I have lodged via PEXA be shown on the title?

Documents lodged electronically through PEXA are not automatically registered in Western Australia. Landgate will still examine the documents and ensure they comply with the law and Landgate practices.

In the future, Landgate is moving towards electronic examination which will reduce processing times and the gap between lodgment and registration.

Will Landgate remain in control of the titles register in Western Australia?

Yes. Landgate will continue to administer the Torrens Title Register in Western Australia.

Can participation rules be changed by the ELNO?

No. Participation Rules are controlled by the Registrar of Titles in Western Australia and land registries in the other jurisdictions. In Western Australia, the Participation Rules have effect as subsidiary legislation.

Will the Joint Form General Conditions for the Sale of Land 2011 be revised to cater for electronic settlements?

Yes. The Real Estate Institute of Western Australia and The Law Society of Western Australia have produced an electronic conveyancing Annexure to the Joint Form General Conditions for the Sale of Land 2011. It is available on The Law Society of WA's website.

Is electronic conveyancing permitted under the Settlement Agents Act 1982?

Yes. Amendments have been made to the Settlement Agents Act 1982 to enable settlement agents to act in relation to an electronic conveyancing transaction.

Where can I obtain a copy of the Electronic Conveyancing Act 2014?

A copy of the Act is available from the State Law Publisher.

There is a requirement in the Participation Rules for subscribers to retain evidence supporting an electronic conveyancing transaction. What is Landgate's recommendation on how to manage the retention of documentation in the event of a death, bankruptcy, sale etc.?

There are existing requirements and obligations placed on settlement agents to retain information pertaining to settlement transactions conducted on behalf of their clients. These requirements are not changed by the advent of electronic conveyancing; however, there may be additional documents that need to be retained with the existing client file e.g. signed Client Authority form.

Documentation can be stored in paper or electronically for a period of at least seven years in line with current business practices. In the event of a death, bankruptcy or sale of the business - again, current methods of dealing with these matters would apply.

How will Freedom of Information (FoI) applications be managed by Landgate and what weights will this place on Settlement Agents to provide information to members of the public and/or lawyers?

FOI Applications will continue to be dealt with by Landgate and will not impact on Subscribers acting in an electronic conveyancing transaction. As is the case now, persons can be required by the Courts to produce evidence. The Registrar and Commissioner of Titles are empowered to call for presentation of evidence in relation to both paper and electronic conveyancing transactions under the Transfer of Land Act 1893.

Will the use of third party data storage companies be mandated?

Data storage arrangements for documents required to be retained are a matter for subscribers.

If the signed original Client Authorisation (CA) is received by a Subscriber, can that be scanned and retained in an electronic form and the signed original CA destroyed, either after scanning or after 7 years?

The Participation Rules require the CA to be retained for seven years. The CA can be retained in either a paper or an electronic form. It is up to the Subscriber to decide, as a business practice and having regard to the potential need to produce a document as evidence:

  • if it will retain the signed CA in a paper or electronic form
  • if the signed original paper CA is received, whether that will be retained or whether an electronic copy of the signed CA only will be retained and the original paper CA destroyed. 

Operations

What is meant by taking "reasonable steps" for Conveyancers?

A guiding principle in the development of the e-conveyancing legal framework is that there should be no change to the existing liability for participants.

'Reasonable steps' is a commonly used legal concept. When applied to conveyancers, it means the taking of such steps as a reasonable prudent conveyancer would have taken in the circumstances and in the ordinary course of his or her business. Whether a conveyancer has taken 'reasonable steps' will be a question of fact depending on the circumstances of the individual case. Ultimately, this would be determined by a Court on an objective basis.

Will Landgate be providing a title search to the PEXA workspace?

No. Landgate will be providing sufficient data to complete all document types available in PEXA through a new Landgate service to PEXA called a Registry Information Supply (RIS). This RIS data will be available in the workspace to pre-populate documents in order to eliminate data entry errors but will
not be sufficient to replace the need for a title search.

Will a check search still be required prior to a settlement of an electronic conveyancing transaction?

Landgate will be providing a new service to PEXA called a Title Activity Check (TAC). A negative TAC will replace the need to conduct a check search for a PEXA settlement. Check searches will still be required as prudent conveyancing practice where settlement takes place in paper.

Who controls the operations of Electronic Lodgment Network Operators (ELNOs)?

ELNOs must comply with Operating Requirements which are based on Model Operating Requirements published by the Australian Registrars' National Electronic Conveyancing Council (ARNECC). Property Exchange Australia Ltd has been approved in Western Australia as an ELNO. The company's Electronic Lodgment Network is called "Property Exchange Australia".

Can interstate conveyancers conduct electronic conveyancing transactions in WA?

Yes. Provided that a Subscriber is permitted under the laws of Western Australia to undertake a conveyancing transaction in Western Australia, the Subscriber will be able to operate and lodge documents with Landgate through PEXA.

Can WA conveyancers oconduct electronic conveyancing transactions in other States?

Yes. Provided that a Subscriber is permitted under the laws of that jurisdiction, a Subscriber can use PEXA to facilitate settlements in other jurisdictions.

Can I process a transaction electronically when the vendor has changed its name but the land title still shows the former name?

Some name changes such as a change in the registered proprietor's name by marriage, is catered for in PEXA with a justification panel in the instrument detailing the change. Evidence of the change in name is retained by the Subscriber along with other supporting evidence. A certification is made when applying a digital signature to the registry instrument that the supporting evidence is held. Please contact PEXA to find out which other name change scenarios are supported.

What can you tell us about any Landgate compliance checks associated with NEC?

Landgate's Registrar of Titles does not wish to introduce additional compliance burdens for conveyancers. Landgate will be conducting a proactive audit regime which will involve random audit checks. Frequency of audits has yet to be decided.

Will indefeasibility of title apply where documents are lodged electronically?

Yes. Indefeasibility of title is not affected by NEC.

As Landgate will not be examining electronically lodged documents, is there more onus and responsibility placed on industry to ensure documents are correct and that clients receive "good title"?

No. There is no additional onus and responsibility placed on industry to ensure documents are correct and that clients receive "good title". Professionals should be adhering to best practice principles to ensure this occurs now.

Landgate has established several new checking processes for documents lodged electronically. These checks eliminate common errors currently occurring in the paper system. This will reduce the need to examine electronic documents after lodgment.

Do I need a special license to participate in NEC?

No. Licensed Settlement Agents and Australian Legal Practitioners do not need additional licenses. Subscribers will have to register with PEXA and enter into a Participation Agreement in order to transact in PEXA.

Do I need additional insurance to participate in NEC?

No. If you are a Licensed Settlement Agent or Australian Legal Practitioner your current professional indemnity insurance policy and fidelity insurance arrangements should cover your participation in NEC. However, you should verify this with your insurer prior to commencing operations in PEXA.

How will members of the public ascertain details (signatures/witnessing/evidence) relevant to any possible investigations or enquiries into property transfers?

In the same manner as occurs in paper, if a party has a valid reason to seek information relating to a land registry instrument then they will be able to obtain that information by obtaining a copy of the document from Landgate, whether the instrument was lodged in paper or electronically.

What happens with duplicate Certificates of Title in an electronic settlement?

For Release 1 in WA only properties with a No Duplicate Issued (NDI) title will be able to be transacted through PEXA. Prior to Release 2 in May 2015 both NDI titled properties certificates and properties with a paper duplicate certificate of title will be accommodated. Where a duplicate certificate of title exists, the Subscriber will certify that they hold the title and have either destroyed or invalidated and securely retained the duplicate certificate of title.

What happens when a duplicate Certificate of Title in an electronic conveyancing transaction has been destroyed or invalidated at settlement and registration does not proceed?

If documents have been lodged at Landgate as part of an electronic conveyancing transaction and the duplicate certificate of title is destroyed or invalidated the documents are withdrawn or rejected from registration. The Registrar will issue a replacement duplicate certificate title at no charge.

Will I be able to have a duplicate title issued following an electronic settlement?

Provided a paper duplicate certificate of title exists prior to an electronic settlement, it will be possible to request a paper duplicate certificate to issue following completion of registration. Where a title is a NDI title prior to settlement; it will not be possible within PEXA to request the issue of a paper duplicate certificate of title following completion of registration. However, should a registered proprietor require a paper duplicate certificate of title they are able to submit an application in paper using an Application Form A7.

What happens if the settlement has to be changed from one medium to another after Verification of Identity (VoI) has been completed?

Please refer to Landgate's Customer Information Bulletin (CIB) 257 for details on this question.

This page was last updated on: 13 Dec 2016