Victoria, at a cost of $30M, has developed a web-based electronic conveyancing system for:
- lodgment and registration at the Land Titles Office; and
- financial settlement.
The two parts of the system can operate independently but are designed to occur simultaneously. Title is to pass about the same time that the purchase money is transferred electronically.
Current subscribers to the system in Victoria include some of the smaller financial institutions and Bendigo Bank – this means that the financial banking system is available to the subscribers to conduct financial settlements.
The system operates where the subscribers act as agents for their clients.
Their role is to:
- identify the client as the vendor/purchaser/mortgagee or mortgagor;
- certify their client's identity and that they have authorised the transaction;
- authorise and "sign" the documents for the transaction.
The Victorian system presently operates as a pilot. There are very few transactions because the small number of participants means it is unlikely that there will be authorised subscribers for all parties to the transaction. Each party will need to have an authorised subscriber.
The system relies on each of the subscribers being insured. It is unlikely that the conveyancers will be able to obtain the same insurance from commercial insurers as Victoria's lawyers enjoy. Victorian lawyers are presently being advised by their compulsory insurer that they may not be insured for those parts of the transaction where there has been risk shifting from the risks presently involved in the paper-based system. This is a matter still being negotiated.
The major and the other banks are not presently participating with the Victorian system because they want a national consistent system.
The national approach, National Electronic Conveyancing System (NECS), has been to look at what might be the requirements for a national system and to see if the Victorian system fits within those requirements.
The Victorian system could be used by being licensed to other jurisdictions. Queensland has indicated that the Victorian system can be adapted to suit Queensland at a cost of approximately $400,000. This will result in a federated system of similar, but not identical, systems. However, a national model to be built from the ground up is likely to cost in the order of $60M – $100M.
Prior to 1 May 2007 New Zealand used a paper-based system under the Land Transfer Act to register documents dealing with land. This meant that upon buying a property the purchaser and any bank or finance company would have to wait up to 15 working days to be legally registered on the title. At present New Zealand has two systems for registration of documents, the paper based system and the new electronic system. By 1 July 2008 only the electronic system will be available.
After 1 May 2007 Landonline introduced the gradual withdrawal of paper-based lodgements with the move to 100% electronic lodgement. Compulsory e-dealing started with mortgage discharges on 1 May 2007 and was expanded to include transfers on 1 August 2007. On 28 April 2008 a further Landonline release meant that 81.9% of documents registered under the paper-based system will now be e-capable instruments. These e-capable instruments became compulsory e-dealing transactions on 28 April 2008 although Land Information New Zealand have allowed a two month teething process for people to get used to the changes.
Brookfields Lawyers having used this system for just under a year have welcomed the opportunity to complete more transactions by way of e-dealing as Landonline offers its users a quicker turnaround time for registration. Under Landonline registration of e-dealing is instant. The system has been embraced by banks, finance companies and the public in general, as it offers many features including:
1. New owners are immediately registered on the title, and
2. Mortgages, discharge of mortgages, notices of claims and thelike are dealt with immediately.
The above features mean that one of the biggest benefits of Landonline for the public is that a property can change hands a number of times in quick succession without delay in the registration process.
For lawyers this means that dealings are no longer checked by the registry and the actual processing is carried out by them with increased cost to the client partially offset by lower registration charges.
National Project Team of the National Electronic Conveyancing System
Hunt & Hunt's Murray McCutcheon has been appointed by the Law Council of Australia to represent the Australian legal profession on the National Project Team of the National Electronic Conveyancing System. Murray is hosting the National Project Team in the Melbourne office on 29 July 2008.
The National Project Team is made up of eight stakeholder representatives representing the banks, non-bank lenders, mortgage processors, information brokers, State land registries, State revenue offices, licensed conveyancers and the legal practitioners across Australia. The purpose of the National Project Team is to drive the implementation of national electronic conveyancing – specifically looking at what might be the requirements for a national system and to adapt the current web-based Victorian system to fit within the requirements of a national system as much as possible.
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.