On 1 May 2016, the NSW Conveyancing Rules were introduced by the
Registrar General pursuant to section 12E of the Real Property Act
1900. They have placed stringent requirements on conveyancers and
solicitors (representatives) to verify the identity of all
While it was always best practice to verify the identity of
clients, these rules have set specific requirements which must be
met in conveyancing transactions.
The representative must verify the identity of each client by
either applying the Verification of Identity Standard or taking
other reasonable steps. What constitutes reasonable depends on
factors such as how long the representative has known the client or
whether they have acted for them previously.
The Standard is set out in Schedule 8 of the Participation Rules
for Electronic Conveyancing and includes:
Verification of Identity (VOI) must be conducted during a
face-to-face in-person interview;
The client must produce original documents in one of the
categories in the table set out in the Participation Rules. You
must start at category 1 (passport and drivers licence). If
category 1 cannot be met, move to category 2, and so on. If
category 5(a) and 5(b) are used, a declaration must be made as
The verifier must sight the original documents and retain
The documents must be current, however Australian passports can
be expired provided they have not been cancelled and were current
within the preceding two years.
There are additional rules for verifying the identity of Body
Corporates and Attorney's.
The verification remains valid for two years and can be used
for multiple matters for that client.
A representative can use an Identity Agent who can conduct the
VOI on behalf of the representative. The representative must
instruct the Agent to use the Standard. The Agent must provide the
representative with certified copies of the documents relied on as
well as an Identity Agent Certification (set out in Schedule 9 of
the Participation Rules).
There are several Identity Agents, some of which require the
client to attend the post office and some of which will come to the
client. The identity agents provide the representative with the VOI
Report which includes a photo of the client and copies of the
The representative must retain the supporting evidence for seven
years from the date of lodgement of the registered dealing.
While the legislation does not specify when the VOI is to be
conducted it must be conducted prior to title being conveyed. We
are of the view however that as a representative cannot act in a
transaction to convey title without the VOI having been carried out
the logical time to obtain VOI is prior to exchange of contracts.
If you do not carry out VOI until after contracts are exchanged and
then subsequently discover there is a concern about the identity of
either buyer or seller then you need to deal with a possibly
fraudulent transaction and the implications of that.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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