Is your business involved in property-related transactions? Then take note: there has never been a more important time to ensure that you can trust the lawyer or conveyancer representing you…
The era of e-conveyancing is upon us, and as Victoria makes the transition to a 100% digital future, new requirements will come into effect that will forever change the way property-related transactions are conducted.
Accordingly, businesses should be asking their lawyers and conveyancers what their practices are doing in preparation.
Victoria’s transition to e-conveyancing: Key dates and changes
Set out below is the current timetable for the transition to e-conveyancing in Victoria:
From 1 December 2017 – Standalone caveats, withdrawals of caveat and non-ADI discharges, mortgages and refinance must be lodged on PEXA (the new national e-conveyancing platform).
From 1 January 2018 – All Victorian Land Titles Office documents (paper and electronic) must be executed by a lawyer on the client’s behalf and Client Authorisation Forms must be in place.
From 1 February 2018 – Transmission Applications may be lodged on PEXA.
From 1 March 2018 – Standalone transfers and survivorship applications must be lodged on PEXA.
From 1 October 2018 – All types and combinations of transactions may be lodged by PEXA (including a withdrawal of caveat, discharge of mortgage, transfer and mortgage).
From 1 August 2019 – All transactions must be lodged electronically (with what we expect to be an increasing amount of exceptions).
From 1 December 2017, all standalone caveats, withdrawals of caveat and standalone mortgages must be lodged electronically through PEXA. Therefore, practically, unless your lawyer is a PEXA ‘Subscriber’ and has the necessary procedures in place, the lodgement of the caveat will be delayed, potentially exposing your company to unnecessary risk.
Client Authorisation Forms
From 1 January 2018, all Victorian Land Titles Office documents (paper and electronic) which historically were executed by the client must instead be executed by a lawyer as the client’s agent.
The lawyer will be required to certify that:
they have verified the identity of the client;
they hold a Client Authorisation Form (CAF); and
the relevant Land Titles Office form is compliant with relevant legislation.
The Australian Registrars’ National Electronic Conveyancing Council (ARNECC) has mandated that a CAF must be completed to authorise a lawyer to sign documents on the client’s behalf. There are no changes to the form, no variations, no alternatives.
Practically, we view this as an extension of the existing lawyer-client relationship but with the added incentive that no CAF means no settlement!
To ensure that obtaining a signed CAF (and completing the corresponding Verification of Identify procedure) does not form part of the last-minute rush before exchange or settlement, we are encouraging lawyers and their clients to engage now to ensure that CAFs are put in place before the 1 January 2018 deadline.
The CAF allows for authority to be provided for a specific transaction, as a batch authority or as a standing authority. We suspect that many clients will favour a batch or standing authority to ensure that their lawyers are able to respond quickly, and to avoid any unnecessary delays to a transaction. A standing (rather than specific or batch) authority also means that multiple CAFs will not be required – a company can provide one CAF that provides authority at a national level.
This is where the trust element becomes vitally important. CAFs can be considered akin to a power of attorney, as a standing authority given through a CAF can authorise the lawyer to sign any and all Land Titles Office (or PEXA forms) on a client’s behalf. It will therefore be imperative that the client and lawyer agree on appropriate procedures quite separate to the CAF to ensure that clients have appropriate oversight to documents and forms that lawyers will be authorised to sign.
Throughout Victoria’s transition to e-conveyancing, it is critical that businesses ensure they are aligned with knowledgeable legal representatives who are not only able to provide guidance through the new system, but have committed to updating their procedures to adapt to the changes, and have a client-focused plan in place to facilitate the transition.