Authority Updates - South Australia - September 2016

Electronic Conveyancing - Update and FAQs

Electronic Conveyancing was introduced on 4 July 2016, together with the new Conveyancing Requirements which apply to both paper and electronic transactions in South Australia. 

In the month of July, 226 dealings were lodged electronically - 7 of which were Transfers. 

Priority Notices 

The Priority Notice is an important tool to ensure the interests of parties to a transaction are protected and its use should be part of standard prudent conveyancing practice. 
With the removal of the Duplicate Certificate of Title, there has been a significant increase in the lodgement of Priority Notices, with 395 Priority Notices lodged in July. 

The increase in lodgements has led to a high volume of Priority Notice enquiries through our Customer Service Centre. SAILIS customers are encouraged to familiarise themselves with the practice of lodging Priority Notices. 

Lodge a Priority Notice and Manage a Priority Notice video tutorials have been updated to include the new “Applicant” field and certifications.

LTO Forms 

As part of our ongoing review of the LTO Forms, the below forms have been revised and re-published on the www.sa.gov.au website as Version 2. Certification Clause Amended

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For SAILIS clients who may be experiencing difficulty in downloading the new LTO Form templates or are unsure on how to print in the new format, Instructions have also been published on the new LTO forms webpage

The old LTO Forms Online application and related Division Form listing will be decommissioned and removed from the www.sa.gov.au website on Friday 4 November 2016

New Conveyancing Requirements - Frequent Enquires

Certifications 
In the majority of situations where a solicitor or registered conveyancer certifies a non-division instrument on behalf of their client - all four certifications are required. 
Instruments that do not contain the correct certifications will be requisitioned. 

Refer to the LTO Form Guidance Notes for further instruction around Certifications. 

Pick-Up Slips 
With the removal of Duplicate Certificates of Title and Crown Leases, LTO Pick-Up Slips are no longer required. 

Discharge of Mortgage 
If certification under section 273(1) is provided by a Mortgagee in relation to a Discharge of Mortgage, the Discharge of Mortgage will be taken to have been executed by the Mortgagee and as such will be accepted for registration in the LTO. This practice aligns with 128(4) of the Real Property Act 1886 as is relates to mortgages 

Leases 
Under Part 11 of the Real Property Act 1886, dual certification applies to Leases, Extension of Leases and Surrender of Leases, except where the Lessee is unrepresented. 

In such instances, the Lease should include either on annexure or the last page of the covenants:

  • the properly witnessed signature of the Lessee 
  • the execution of the incorporated body in accordance with any prescribed formalities. 
    The Lessee's certification clause should then be struck-through and the text “Lessee is self-represented” inserted. 

Personal Declarations 
The new relevant certifications duly made by the authorised person removes the need for personal declarations to be included on LTO Forms, with some exceptions such as Applications to Note Re-entry of Lease and Appointment of New Trustee(s). 

There remains a requirement in the relevant instruments (e.g. an application to register an order of court) where there is a discrepancy in names for a statement similar to below to be included: 
“<John Smith> named in the <i.e. order/warrant etc.> and the <John James Smith> named in the Certificate of Title is one and the same person.” 

Transitional Arrangements 

Verification of Identity Requirements 
The scope of dealings for which Verification of Identity (VOI) Requirements apply will depend on whether SAILIS clients deal with the conveyancing transaction under the old or new legislative requirements. For example:

  • Version 2 of the VOI Requirements would apply if dealing with the conveyancing transaction under the old legislative requirements. Version 2 of the VOI Requirements only applies to Transfers, Mortgages, Transmission Applications and Applications to Register Death.
  • Version 3 of the VOI Requirements would be applied if dealing with the conveyancing transaction under the new legislative requirements. Version 3 of the VOI Requirements broaden the scope of applicable transactions. 

These arrangements are only in place during the transition period. Version 3 of the VOI Requirements will apply to any dealings certified on or after 5 November 2016. 

Certifications on Annexures 
'Hybrid' forms will be accepted during the transition period in instances where one party to the transaction wishes to sign the dealing under Client Authorisation, and the other to execute and witness under the old requirements. 
In such circumstances, either the new certification or existing execution(s)/witnessing will need to be securely attached to the dealing in the form of an annexure. Four new transitionary annexures were developed for this purpose and these can be found here. 

Where clients have created their own annexure which include the execution and witnessing under the old legislative requirements - they must ensure they certify the dealing “is correct for the purposes of the Real Property Act 1886”. Annexures which do not include this certification will be requisitioned.

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Disclaimer: The information herein has been prepared by SAI Global Property Division Pty Ltd ACN 089 586 872 from information released by the Authority cited on this page. It is provided as general background information only; it is not complete; and it does not comprehensively address this subject matter. Readers should not consider the information so provided as advice nor as a recommendation to take any particular course of action. Persons needing advice should consult their own solicitor, accountant or other professional adviser.