Information sessions - the move to electronic lodgement of land transfer documents
The Registrar of Titles, Jean Villani, made a series of presentations to industry in late March/early April 2017.
A copy of her presentation is now available for download from the Document list below, along with a summary of her responses to questions asked during the information sessions. The Document list also contains a recording of one of the webinar sessions.
Providing faster, safer settlement of property transactions
In 2008, a Council of Australian Governments’ (COAG) agreement challenged all states to introduce electronic conveyancing as part of the Commonwealth’s push towards a national seamless economy.
Since then Landgate has engaged with stakeholders to develop electronic conveyancing as an initiative to increase productivity, improve the security and integrity of land tenure information, and bring the conveyancing industry into the digital age.
In 2014, Landgate received its first transaction via the Electronic Lodgement Network Operator, PEXA. Since then Landgate has made mortgages and discharges of mortgage, caveats and withdrawals of caveats, and transfers possible electronically.
The next step is to bring the whole industry into the electronic age – the system doesn’t offer its benefits unless everyone uses it.
For more information on how to lodge eligible documents, see the PEXA website.
For information on eligible documents, see this explanation: Eligible documents list.
For all other enquiries, please call Customer Service on +61 (0)8 9273 7373 or 1300 556 224 or email email@example.com.
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.
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 (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 (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.
|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 waiver||PR4/2016||Non-ADI ACL Holder Subscriber Insurance||18 November 2016|
|Operating requirements waiver||OR1/2015||ELNO - Insurance||6 July 2015|
|Operating requirements waiver||OR2/2015||ELNO - Subscriber Compliance||6 July 2015|
|Operating requirements waiver||OR3/2015||PEXA - Independent Expert||6 July 2015|
|Participation rules waiver||PR1/2015||Subscribers - VOI Timing||6 July 2015|
|Participation rules waiver||PR2/2015||Certifications||19 November 2015|
|Operating requirements waiver||OR4-2015||Subscriber Verification of Identity||17 December 2015|
|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 are appropriate 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.
The document types able to be lodged via PEXA are: Discharge of Mortgage, Transfer, Mortgage, Withdrawal of Caveat and Caveat. Transactions that are eligible can be found at: Eligible documents list. The range of documents capable of electronic lodgment will be expanded over time.
No. Documents lodged in paper and electronically through PEXA will only be accepted during normal business hours.
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.
No. Landgate's EAS2 application will continue to provide the current rate enquiry service to industry.
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.
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.
Yes. All documents lodged electronically will be searchable through the existing Land Enquiry function.
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.
Once documents have been registered Landgate will send a message to the PEXA workspace indicated that document processing has been completed.
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.
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.
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.
No. Landgate fees will be the same for electronic and paper lodgments.
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.
Enquires relating to the PEXA system should be directed to firstname.lastname@example.org
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
Landgate will 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.
Yes. Landgate will continue to administer the Torrens Title Register in Western Australia.
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.
Yes. Amendments have been made to the Settlement Agents Act 1982 to enable settlement agents to act in relation to an electronic conveyancing transaction.
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.
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.
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.
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.
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".
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.
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.
The Registrar of Titles does not wish to introduce additional compliance burdens for conveyancers. A proactive audit regime which will involve random audit checks will be implemented. Frequency of audits has yet to be decided.
Yes. Indefeasibility of title is not affected by 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.
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.
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.
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.