More information

1. Document eligibility list

2. LOD-01 Lodging of electronic documents

3. Commissioner and Registrar of Title Requirements

4. WA Participation Rules

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. In May 2017, the Australian Registrars' National Electronic Conveyancing Council (ARNECC) published Model Participation Rules Version 4 (MPRv4).

5. WA Participation Rules Version 4

WA Participation Rules Version 4 (WAPRv4)  [PDF 0.8MB] have been prepared having regard to MPRv4.

WAPRv4 came into effect in Western Australia on 22 July 2017.

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

6. 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. In May 2017, the Australian Registrars' National Electronic Conveyancing Council (ARNECC) published Model Operating Requirements Version 4 (MORv4).

7. WA Operating Requirements Version 4

WA Operating Requirements Version 4 (WAORv4) [PDF 1.1MB] have been prepared having regard to MORv4.

WAORv4 came into effect in Western Australia on 22 July 2017.

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

9. Version

WA Participation rules version Effective date
WA Participation rules version 4 22 July 2017
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 4 22 July 2017
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

10. Wavier

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
2017    
Participation rules waiver PR1/2017 WA Participation rules version 4 10 July 2017
    
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 waiver PR4/2016 Non-ADI ACL Holder Subscriber Insurance 18 November 2016
    
2015    
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
    
2014    
Operating requirements waiver OR1/2014 Property Exchange Australia Ltd 13 June 2014
Participation rules waiver PR1/2014 Subscribers 13 June 2014

11. FAQs

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.

General

Will all Landgate instrument types be available in electronic conveyancing?

The document types able to be lodged via an ELNO 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 lodgement will be expanded over time.

Will Landgate accept lodgements submitted electronically outside current business hours?

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

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

No. Documents lodged electronically with Landgate by an ELNO will be processed using the same lodgement time stamp system currently used for paper lodgements. Documents will receive a dealing number from the same number set as used for paper. Electronic documents will not be received from an ELNO outside normal business hours.

What happens if other parties to the contract are not eligible to subscribers to an ELNO?

Transactions that have parties to the contract that are not eligible to subscribe to an ELNO will need to proceed in paper.  For further information on eligibility to subscribe, please refer to the Model Participation Rules which can be found here.

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.

How will I know when electronic documents have been registered?

Once documents have been registered Landgate will send a message to the ELNO workspace indicating 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 customer service representative by calling +61 (0)8 9273 7373 or 1300 556 224 or email: customerservice@landgate.wa.gov.au

Will stamp duty payments be made through an ELNO?

Yes.  It will be possible to pay stamp duty on transfers as a disbursement from a financial settlement.  Current processes for assessing duty remain unchanged and further information on this can be found on the Office of State Revenue’s website here.

Can anyone use an ELNO?

No. Access is restricted to approved 'Subscribers' who must be authorised under the laws of Western Australia to undertake conveyancing work.

For further information relating to subscriber eligibility please refer to the Model Participation Rules which can be found here.

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 has prepared a Guidance Note on ‘Right to deal’ which may be of assistance and can be found here.

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

Landgate will examine the documents and ensure they comply with the law and Landgate practices. Further information on Landgate’s turnaround times can be found on our website.

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. The Model Participation Rules are published by ARNECC and are adopted by each of the States and Territories as their Participation Rules. In Western Australia, the Participation Rules have effect as subsidiary legislation.

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

A copy of the Act is available from the Western Australia Legislation.

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.

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.

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.

Who controls the operations of Electronic Lodgement 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).

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 an ELNO.

Can WA conveyancers conduct electronic conveyancing transactions in other states?

Yes. Provided that a subscriber is permitted under the laws of that jurisdiction, a subscriber can use an ELNO 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 an ELNO 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 the ELNO to find out which other name change scenarios are supported.

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

The Compliance Examination Procedure is outlined in Schedule 5 of the WA Operating Requirements.

Will indefeasibility of title apply where documents are lodged electronically?

Yes. Indefeasibility of title is not affected by electronic lodgement.

Do I need a special license to participate in electronic conveyancing?

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 electronic conveyancing?

Insurance requirements can be found in the WA Model Participation Rules which can be found here.

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?

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 and the documents are withdrawn or rejected from registration, the Registrar will issue a replacement duplicate certificate title at no charge.

Is electronic conveyancing a safe way to transact?

Electronic conveyancing is a secure and robust environment to transact land.

What can I do to ensure my online transactions are secure?

While no financial transaction is free from the risk of fraud, the Registrar encourages all of industry to take every possible step to reduce the overall risk by being vigilant in maintaining system security, virus protection and robust business processes.

The WA Registrar of Titles is committed to continuing to work with industry to ensure the regulatory requirements remain relevant and robust.

Why is e-conveyancing being mandated when there is no market competition?

The legislation allows for multiple electronic lodgement network operators.  There is currently the one fully operational ELNO, however two other ELNO’s have been approved and are currently working towards integration.

Is there a conflict of interest given the State Government of WA has shareholdings in PEXA?

Regulations to mandate e-conveyancing were put forward by the Registrar of Titles, who is an independent statutory officer, sworn in by the Governor under the Transfer of Land Act. She is duty bound - and legally bound - to act independently of Landgate. The Registrars focus remains on ensuring the integrity of the register. The ACCC was invited to look at the potential for conflicts and found there was no case to answer.

This page was last updated on: 13 Dec 2018