New property laws: Verification of Identity
Adelaide property lawyer Giles Kahl writes about the first stage of major changes to conveyancing practices in South Australia.
Adelaide property lawyer Giles Kahl writes about the first stage of major changes to conveyancing practices in South Australia.
For many years there has been pressure around Australia for a move to “electronic conveyancing”, ie. the facility to electronically lodge documents at land registries. When this system is fully operational, both the lodgment of documents and also the transfer of money between bank accounts will happen simultaneously without any physical “settlement”. This will necessitate a number of fundamental changes to current conveyancing practices.
The facility to lodge documents electronically will probably not exist in South Australia until about 2015. The Registrar General has however decided that it would be a mistake to wait until the electronic system goes “live” and then introduce all of the necessary changes to practice at the same time. Instead, he has indicated his intention to introduce changes progressively, and the first change will be to introduce a regime of verification of identity (“VOI”) of parties involved in various common types of land transactions. It is proposed that that regime will come into force on 1 July 2013.
Although documents lodged from July 2013 onwards will still be in paper form, it will be necessary for the identities of the parties to have been verified. The verifier(s) (ie. lawyers and conveyancers) will be required to sign off on the document, and are potentially responsible if it subsequently appears that a party was not correctly identified.
The Registrar General has released a proposed policy document (“the Policy”). For those who want to know as much as possible at this stage click here, as this summary is intended as a brief introduction only.
The Policy leaves some questions unanswered. There will apparently be seminars conducted early next month to assist the industry to understand the requirements, however these seminars will apparently be half day sessions and will cover various aspects of electronic conveyancing rather than being limited to VOI. For those who may be affected by these changes, and who do not attend the seminars, more detailed information will need to be provided before 1 July.
Types of Documents Affected
See appendix A of the policy document. Note that caveats and withdrawals of caveats are not (at this stage) included.
Apparent Extension of VOI Regime Beyond Lodgment of Documents
It should be noted that the Policy states (at section 4):
“The Verifier or their agent must take reasonable steps to verify the identity of:
……
d) Where the Verifier gives a (duplicate/paper) certificate of title to any other person, that person prior to providing the (duplicate/paper) certificate of title; ….”.
The reference to “duplicate” is of course what we would commonly refer to as the “original” (historically, the true original never left the LTO, and the document held by the registered proprietor or mortgagee was strictly the “duplicate title”).
It thus appears that a VOI requirement will arise whenever we release a certificate of title from our possession, even though no lodgment of any document relating to that title is contemplated. It is unclear from the Policy how this requirement will be monitored or enforced. Hopefully this will be clarified at the seminars.
Process of Identification
Identification requires that there be a face to face meeting between the person being identified and the “Verifier” or their agent. Agents can be lawyers, conveyancers, authorised deposit-taking institutions (e.g. banks) or other reputable and competent persons who have the required level of insurance. Australia Post will apparently provide an identification service (for a fee).
Original identification documents must be produced to the Verifier at the meeting. Broadly speaking where passport, drivers licence or proof of age card (“photo ID”) can be produced, this together with other identifying documents will enable the Verifier to identify a person whether known to them or not. The image on the photo ID must of course be compared carefully with the face of the person attending the meeting.
Where no photo ID is available, other forms of identification may suffice if a person (a “Declarant”) who does know the person being identified also attends the meeting, and make a statutory declaration identifying the person, and the Verifier identifies the Declarant using photo ID. Parties to the transaction and relatives of the person being identified cannot be Declarants.
All methods of identification require at least two forms of documentary identification. Various documents can be used but careful attention to the combinations of documents which are acceptable is required.
There are separate rules for “Self Represented Parties”.
In summary the process of identifying a person will be highly regulated and specific, and no lawyer or conveyancer should sign a form of verification until they understand the requirements.