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 .
The below chart represents the results of compliance examinations conducted on WA Subscribers for the 2020-2021 financial year. The majority of non-compliance instances related to false certification regarding the destruction/invalidation of duplicate certificates of titles.
Further information based on the Compliance Examinations findings, including clarification of the procedural requirements, are provided below:
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 Client Authorisation must be fully completed and signed by all parties.
- The correct Client Authorisation must be used. A Subscriber is required to use the version of the Client Authorisation that is in effect at the time that the Client Authorisation is signed. Creation of your own form is not permitted.
- In WA, where a client has passed away, the Client Authorisation ends upon the death of the Client and is therefore invalid. This means any electronic instruments or Documents, whether digitally signed prior to the death of the Client or not, cannot be used and cannot be lodged for registration.
- Where a Power of Attorney (‘PA’) is in place, the Donor should be named as the Client. The Attorney should sign as Client Agent and state their name and registered Power of Attorney number.
- The Power of Attorney must be registered with Landgate prior to transacting on the property and the Power of Attorney number referenced in the ‘Capacity’ section.
- The PA should be searched and a copy retained. The Subscriber must confirm whether the PA has given power to multiple attorneys jointly, and if so, all attorney must execute the Client Authorisation as Client Agents.
- Examples of how to complete the form are on the ARNECC website MPR Guidance Note #1 – Client Authorisation.
Certifications are statements made by a Certifier that they have undertaken a specific action.
- Certifications regarding the retrieval and destruction/invalidation of a duplicate certificate of title must be correct.
- In a discharge scenario, it is always preferable that if a duplicate title is held, it is presented so that it may be updated. It is noted however that when preparing a standalone discharge in WA, entering duplicate holding details in an ELNO are optional. There are scenarios where a mortgagee may choose not to enter them, such as discharging a second mortgage where the first mortgagee holds the duplicate. Where there is a financial settlement involving a transfer or new mortgage, the duplicate holding details are compulsory.
- Where an incorrect Duplicate certificate of title edition number is entered in the ELN, a warning will highlight to alert the user of a mismatch. In this situation a Subscriber should not proceed to lodge the document in the ELN. Please contact Landgate to discuss the issue further.
- There have been instances where a second mortgagee has certified the Duplicate CT has been destroyed or made invalid however the Duplicate CT was held by the first mortgagee, or the first mortgagee has produced it to Landgate.
- In WA, the second mortgagee must either obtain the Duplicate CT from the first mortgagee or be satisfied that the first mortgagee has destroyed or made invalid the Duplicate CT. It is the responsibility of the Subscriber to ensure that the certifications they make in a document are correct and compliant and the Subscriber needs to determine what action is required so that they are comfortable making that certification.
- Producing a duplicate CT to Landgate in order to make the electronic certification is not correct and will result in a false certification being made.
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.
- The Client details must match the information held on the Title register.
- There have been instances where Client information was incorrectly entered into the workspace to match the information held on the Title Register. In this scenario, Landgate requests contact be made prior to lodgement to ensure accurate information is entered.
- Right to Deal of joint attorneys in a PA must be established.
- Right to Deal of joint proprietors must be established.
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).
- A Subscriber needs to be able to provide written details of the steps taken to verify identity of their Client/mortgagor
- Subscribers are required to retain evidence supporting the verification of identity in order to demonstrate that reasonable steps were taken. Refer to Model Participation Rules Guidance Note #5: Retention of Evidence
- Evidence to support a change of name.
- Reasonable steps need to be taken to ensure the Person being identified is one and the same Person referenced in the differing documents.
- Verification if identity not conducted on one proprietor
- Verification of all Persons involved in the conveyancing transaction and supporting evidence should be obtained and retained.