On 11 October 2021, new changes to the land titles system in NSW were introduced that transitioned NSW away from paper-based processes.
The Real Property Amendment (Certificates of Title) Act 2021 made several changes to legislation, importantly allowing for the cancellation of certificates of title (CTs) and progressing NSW to 100% electronic lodgement of land transactions.
There are two significant changes from 11 October 2021:
the cancellation of CTs and the control of the right to deal (CoRD) framework; and
all land dealings must be lodged electronically. This is referred to as ‘100% eConveyancing’.
KEY CHANGES FROM 11 OCTOBER 2021
Certificates of Title
Existing CTs were cancelled and CTs will no longer be issued. Existing CTs cannot be required to be produced to have a dealing or plan lodged for registration.
Similarly, Authorised Deposit-Taking Institutions, such as banks, will no longer be issued with CoRD, which is the electronic equivalent of a CT.
The Torrens Title Register has always been and will continue to be the single source of truth as to the ownership of a person’s home. The Torrens Title Register is securely stored and backed up by both NSW Land Registry Services and the Office of the Registrar General.
The Impact On Landowners
There are three main changes from the current practice for landowners:
Those who pay off their mortgage will not receive a CT as was traditionally the case.
A purchaser of property without the need for a mortgage (aka “cash-buyer”) will not receive a CT.
When a plan of subdivision is registered, and new parcels of land created, CTs (or CoRD) will no longer be issued for those parcels.
In all instances an Information Notice will issue, which will confirm the dealings registered and date of registration.
Landowners of unencumbered land (i.e. no mortgage) who have a CT don’t have to do anything after 11 October 2021. After this date the CT will no longer be a legal document.
Those who own unencumbered land, but have someone else holding or storing their CT, may wish to request to have it back. From 11 October 2021 there will no longer be a remedy under the Real Property Act 1900 to get a CT back from others, given it has no legal effect.
Protections In Place When There Is No CT
The Torrens Register is the single source of truth as to a person’s interest or estate in land. All documents to be registered on the Torrens Register must be lodged by a subscriber, who must verify the identity of their client and establish that they have the right to deal with the land. Lawyers and licenced conveyancers are subscribers who can represent clients to prepare and lodge dealings.
Introduction of an Information Notice
In all instances of property ownership, an Information Notice will issue.
Details that will be on an Information Notice include the folio identifier, the dealing(s) that were registered including their registration number(s), the subscriber's reference and the date of registration.
As an Information Notice is not a definitive statement of the state of the Register, a title search of the Register (which can be obtained on payment of a fee) will be necessary to provide the most accurate and up to date title information regarding the property.
100% eCONVEYANCING
The Registrar General has declared under the NSW Conveyancing Rules that all electronic dealings listed in the Schedule of eDealings are mandated to be lodged electronically.
The list of dealings in the Schedule of eDealings accounts for 99% of all land transactions lodged with NSW Land Registry Services (LRS) and are all available for use now. The remaining 1% of transactions are dealt with a slightly different process, which is explained in out-of-scope transactions below.
Lodging land dealings in paper will not be permitted from 11 October 2021. All land dealings to be lodged with NSW LRS can only be done electronically by a subscriber (e.g. a lawyer, licensed conveyancer, or bank) to an Electronic Lodgement Network.
Amendments to the NSW Conveyancing Rules will be made to repeal those parts which refer to a paper process. The current Conveyancing Rules waivers will also be revoked as they will no longer apply from 11 October 2021.
The Lodgement Rules will specify when out-of-scope electronic dealings can depart from the usual manner of preparing an electronic dealing.
The Impact on Purchasers/Sellers
You will need to see a lawyer or conveyancer who is a subscriber to an Electronic Lodgement Network (ELN) to prepare and lodge dealings that are to be registered on the Torrens Register.
Most lawyers and licensed conveyancers that deal with property law are already registered as subscribers.
A subscriber must follow strict obligations, such as verifying your identity, establishing that you have the right to deal with the subject land and that they have your legal authorisation for them to carry out the work on your behalf. Failure to do so may result in the subscriber being suspended, terminated, or otherwise disciplined by their regulator.
Out-Of-Scope Transactions
About 1% of transactions are currently out-of-scope for eConveyancing due to technical reasons. NSW LRS and the ELNOs continue to work behind the scenes to gradually reduce the out-of-scope transactions, which could take several years.
Today, the way to deal with out-of-scope transactions in an electronic mandated environment is to rely on a waiver to the Conveyancing Rules so the parties can lodge their out-of-scope dealing in paper.
From 11 October 2021, the process for dealing with out-of-scope transactions will alter slightly.
A subscriber will still prepare the out-of-scope dealing in paper, however, will lodge it electronically as a pdf attachment to the electronic dealing known as ‘Dealing with Exception’. Once lodged, NSW LRS will examine the paper dealing.
The Lodgement Rules will shortly be updated to specify the scenarios where the Dealing with Exception can be used. NSW LRS has provided comprehensive guidance on how to use that dealing.
Article source: NSW Office of the Registrar General
https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title
SEEKING LEGAL ADVICE
The circumstances for each sale or purchase of a property can be different. Before exchanging a Contract of Sale, you should always plan ahead by speaking with a legal professional about your matter.
At Yorkins Legal, we aim to give our clients hassle-free legal services. We can assess and advise on your circumstances to ensure your next purchase or sale of a property is as smooth as possible.
Our initial consultations are free, confidential and can be discussed over the phone or in person. We offer after-hours consultations and mobile service for our clients’ convenience. We will meet you wherever it is most comfortable for you, whether at your home or office.
Contact us to speak with our friendly team today.
Related Solicitor
Kai Yeung
Principal Solicitor
T: (02) 7255 2788
Disclaimer - The information contained on this site is intended only to provide a general overview of matters of interest and is intended to apply only within Australia. It does not constitute legal advice. Professional advice should be obtained from a Yorkins Legal professional before taking any action in relation to any information contained on this site.
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