Electronic Conveyancing - Subscriber Compliance
The purpose of the Compliance Examination program is to build trust and confidence in the ELN and ensure the integrity of the land titles register is not compromised.
Subscriber Compliance Examinations check that Subscribers are meeting their obligations under the WA Participation Rules (WAPR) and includes:
- Client Authorisation
- verification of identity
- verifying the right to deal
- certifications within electronic documents
- retention of supporting evidence.
Compliance Examinations maybe initiated at random or for specific transactions which have been brought to the attention of the Registrar.
As part of the compliance process, Subscribers are required to provide documents and evidence to show they have complied with the WA Participation Rules. The Model Participation Rules Guidance Notes - ARNECC #6 Compliance Examination provides information which may be used to assist Subscribers meet their obligations.
Enquiries regarding the WA Compliance Program should be directed to Assurance@landgate.wa.gov.au
Users of electronic conveyancing (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. February 2021, the Australian Registrars' National Electronic Conveyancing Council (ARNECC) published Model Participation Rules Version 6.
Subscriber Compliance Report
Each jurisdiction is required to submit quarterly Subscriber Compliance reports to ARNECC on the number of Compliance Examinations conducted and their findings.
Details on the most common errors identified nationally are collated and made available on the ARNECC website Subscriber Compliance Guidance - ARNECC .
In January 2022, WA commenced randomly selecting Subscribers for a Compliance Examination.
The below information represents the results of the Compliance Examinations conducted in WA for the 2021-2022 financial year. Comparing the information for the 2020-2021 and 2021-2022 financial years, there was a significant variation on the number and types of issues identified with each principle including the documentation or evidence provided. The majority of non- compliance issues in the 2020-2021 financial year related to Certifications whereas the main issues in the 2021-2022 financial year related to Client Authorisation and Right to Deal.
Further information based on the Compliance Examinations findings, including clarification of the procedural requirements are provided below.
WA Subscriber Compliance Errors 2020-2021 vs 2021-2022
A Client Authorisation is a Document that enables a Party to a transaction (the Client) to authorise a conveyancer or lawyer to act on their behalf in that transaction.
- The correct version of the Client Authorisation form (CAF) which is in effect at the time the CAF is signed must be used. The current version is version 6 which took effect on 12 April 2021 and is available on the ARNECC website.
- The CAF must be fully completed.
- The CAF must include details of the NAME of the Client/Client Agent and the NAME and CAPACITY of the Signatory.
- The name of the Client should match the details as per the identity documents. Where a discrepancy is identified, details of the steps taken in verifying their identity and identifying the correct name to use on the CAF must be retained.
- Where the Client Agent signs under a Power of Attorney (PA), the PA must be registered with Landgate prior to transacting on the property.
- When signing under a PA, the registered PA number must be included on the form.
- Where a PA appoints joint attorneys, a CAF signed by all the attorneys must be obtained.
- Details of each Conveyancing Transactions must be included on the form.
- Where a Client Agent (eg Attorney, Company Officer) has the authority to act on behalf of the Client, verification of the authority of the Client Agent to bind the Client to the Client Authorisation and Conveyancing Transactions is required.
- Where a Standing Authority is in place, the authority must not have expired or been revoked.
- Where a property is being sold under a Family Court Order (FCO), and the order appoints a person to sign on behalf of one of the parties, the names of all proprietors should be shown as Clients on the form. The person appointed to sign on behalf of a proprietor should sign as the Client Agent for that proprietor pursuant to the FCO.
- Examples of how to complete the form are available on the ARNECC website MPR Guidance Note #1 – Client Authorisation.
- An Example of how to complete a Client Authorisation where a PA is in place is available on Landgate website.
Verification of Identity:
Verification of identity is a process carried out to ensure that a Person exists and the Person is in fact who they claim to be. It includes ensuring that the Person the Subscriber is dealing with is the same person shown in any evidence obtained by the Subscriber as part of the reasonable steps taken to verify the identity of the Person (e.g. photographic identity documents such as a passport or drivers licence).
- Where the VOI Standard is being used and an Australian Passport is used as identification, the passport must not have expired more than 2 years prior. All other forms of documents produced must be current
- VOI documents provided and retained on file should be dated
- Where the details in the identity documents vary
- documentation such as a change of name or marriage certificate to substantiate the change and/or
- the steps taken to accept the discrepancy should be retained.
Where the VOI standard as per Schedule 8 of the MPR is not used, details of the reasonable steps and the documents taken to verify the identity of the client must be retained.
Right to Deal:
Right to deal is the entitlement of the Person to be a particular Party to a Conveyancing Transaction. The Model Participation Rules for electronic conveyancing require a Subscriber to take reasonable steps to verify the right to deal of their Client, and/or the mortgagor for a mortgage.
Verifying right to deal will require you to sight supporting evidence that includes the name of the Person whose right to deal is being verified and the property or transaction details. The supporting evidence should allow you to link the registered interest holder or transacting Party to the land. More extensive checks and enquiries should be made where doubt arises, or should reasonably have arisen, in relation to a transaction and a Person’s right to deal.
- “Knowing your client” is insufficient in establishing right to deal. “Knowing your client” may be considered reasonable steps in establishing your Client's identity.
- The Appointment of Settlement Agent for Purchaser or Vendor shows a client’s intention to appoint you as the agent to act on their behalf, whereas the contract which binds your client to the transaction may assist in establishing right to deal.
- Where a property is sold under a Family Court Order it is recommended that information pertaining specifically to the Transfer of a property is included in the Court Orders.
Certifications are statements made by a Certifier that they have undertaken a specific action.
- The Duplicate CT should not be returned to Landgate for destruction. The destruction or invalidation of the duplicate certificate of title must occur prior to lodgement. If an electronic document is lodged, and subsequently withdrawn or rejected by the Registrar of Titles, a new edition of the duplicate certificate of title will be issued back to the lodging party.
- Clarification on which party is required to enter duplicate CT holding instructions and CT issuing instructions in the workspace is available in the Land Titles Registration Policy and Procedure Guides - Landgate LOD-01 Lodging of Electronic Documents