On 20 June 2012 the Western Australian Registrar and Commissioner of Titles issued a practice statement titled ‘Verification of Identity’. This practice commenced transitionally starting on 1 July 2012 with full compliance expected on documents lodged on and after 2 January 2013. The procedures can be accessed at http://www.landgate.wa.gov.au/docvault.nsf/web/PS_CIB/$FILE/VOI_Practice_WA-20June2012.pdf
What are the key requirements?
The practice requires:
- mortgagees to be responsible for verifying the identity of the mortgagor; and
- conveyancers and lawyers to be responsible for verifying the identity of vendors of land.
What are the procedures?
The practice specifies a ‘safe harbour’ process for conducting VOI. The prescribed VOI statement to be lodged with Landgate with mortgages and other dealings requires the certifier to state that ‘reasonable steps’ have been taken for VOI, so there is flexibility to not comply with the safe harbour provisions. However, Landgate has repeatedly stressed that VOI is an important step and that the obligations should not be taken lightly or as a mere mechanical procedure.
The safe harbour procedures require two steps for VOI of individuals:
- the production of current original identity documents (the identity documents are listed in Table 1 at the end of this report); plus
- a visual ‘face to face’ assessment of the identity documents and the person to whom they relate.
Only original documents must be relied upon for VOI. Copies, or certified copies, of these are not acceptable
Conveyancers, lawyers, and mortgagees (called ‘Identifiers’ in this report) should compare signatures on land transaction documents with the signatures appearing on the original identity documents.
Who can conduct VOI
Within Australia, the VOI must be undertaken by Identifiers or Identifiers can appoint a third party as their agent to undertake the VOI. However, it appears that the Identifier appointing the third party remains liable if the third party makes a mistake.
Outside of Australia the identification must be conducted by an Australian Consular Officer using identity documents listed in Table 2 – see below. At least one of these documents must have a photo and the signature of the person being identified. An Australian Consular Officer must also witness any documents executed outside Australia.
When must verification occur?
The procedures say that verification must be taken after receiving instructions and before execution of the document. It accepts that identification and execution of the documents may not necessarily occur at the same time, although ideally verification should occur immediately prior to the execution of the documents so that the identifier and the witness are the same person.
Exceptions to identification
VOI is not required:
- for land transfers when a person is represented by the same conveyancer/lawyer - VOI is required for the first and second transfer, but not any subsequent transfers within the next two years;
- for mortgages granted to the same mortgagee, VOI is required for the first and second mortgage, but not any subsequent mortgages within the next two years.
How to identify companies
Natural persons executing documents on behalf of a company or other body must have their identity verified using the identification rules set out above.
The Identifier must also satisfy themselves:
- of the continued existence of the body at the time of execution (eg an ASIC search that is not more than 30 days old); and
- that the signing individuals are authorised to execute on its behalf (eg confirm they are directors using the same ASIC search or by reference to the company constitution).
Declaration of identity
A Declaration of Identity can only be used when identification by Categories 1, 2 or 3 in Table 1 (see below) are unable to be satisfied.
The declaration is a statutory declaration that states:
- the declarant’s occupation;
- the declarant’s full name, address and date of birth;
- the full name and date of birth of the person being identified and who is executing the document;
- the nature of the declarant’s relationship with the person being identified;
- that they are not related to the person being identified;
- the length of time that they have known the person being identified; and
- specify the document type the person being identified is executing and include the land description specifying the title reference.
The declarant must:
- have their own identity verified by an Identifier (it is unclear whether or not employees of the Identifier can be the declarant);
- review all the current original documents specified in Category 4;
- be over the age of 18;
- have known the person being identified for more than 12 months;
- not be a relative of the person being identified;
- not be the person’s agent in a transaction (eg possibly not be the finance broker); and
- not be a party to the document (ie cannot be the mortgagee).
The procedures recommend that, on the completion of the verification, a complete copy of the original identity documents is retained and that:
- the identifier completes the identifier’s certificate shown in Appendix C-1 (see below) and attach copies of the identity documents;
- sign their name and date each copy of the identity documents stating that it is a true copy of the original;
- witness the relevant transaction documents.
Lodgement of statement with Landgate
The Identifier must lodge a statement in a prescribed form with Landgate specifying details of the VOI conducted.
Click here to view table.