If you have ever tried to register powers of attorney nationally you would be aware that the frameworks that exist to deal with the formalities and registration of powers of attorneys (POA) across Australia are extensive, inconsistent and fraught with administrative burdens. This note explores the peculiarities and pitfalls of Western Australia's Transfer of Land Act 1893 (WA) (TLA), and in particular, section 143 of the TLA, that have captured our attention recently.
So you want to grant the power to deal with land in Western Australia?
Section 143(1) TLA enables the proprietor of land or any lease, mortgage or charge to appoint an attorney to act for it in transferring or otherwise dealing with the land or interest. Such a POA must be lodged with the Western Australian Land Information Authority (Landgate) before it can be relied upon to execute instruments that deal with land under the TLA.
Often we find that parties can be frustrated in seeking to engage in the process of preparation, lodgement and noting of a POA in the book held by the Registrar of Titles in WA under s143 TLA. Outdated legislation, coupled with the administrative requirements can often lead to a party emerging from the other end of the process feeling somewhat dazed and confused.
In a recent dealing with Landgate it was of some consolation, albeit of no practical assistance, that Landgate advised that:
"We acknowledge that Western Australia is the only State in Australia which requires a power of attorney to be in a prescribed form and appreciate the difficulties this causes to the conveyancing fraternity. All other States have a more flexible position in relation to powers of attorney and in general allow any usual form of power of attorney to be used and noted on the register".
So while it is recognised WA's system is somewhat lacking, the practical reality is that the present system must be complied with in order to ensure lodgement of a POA in WA is successful.
Navigating the Minefield - Tips for getting it right
A POA lodged at Landgate under s143(1) TLA must:
- be in the form, or substantially in the form, of the Nineteenth Schedule of the TLA1. So while it is not essential that the prescribed form be used, material deviations to the substance of the form will not be accepted by Landgate;
- be lodged within three months of the date of execution of the POA to benefit from the statutory assumption that the POA has not been revoked. Lodgement outside of this time frame is possible, but must be accompanied by a statutory declaration confirming, amongst other things, that the donor is still alive (or registered in the case of a corporate donor) and the POA has not been revoked; and
- contain powers to deal with land registered under the TLA (e.g. the power to sign Transfer of Land instruments). The powers may extend to land owned by the donor at the time of the grant of the POA as well as land that the donor may become the registered proprietor of in the future. While the scope of the powers may be limited, there can be no limitation on the attorney's right to enforce or give effect to the powers (e.g. a monetary limit on the power to transfer land would not be accepted by Landgate).
Administrative or Interpretative Burden
Landgate has also emphasised that the grant of powers must not place an administrative or interpretive burden on the Registrar. For example, there must not be any conflicting or ambiguous terms, or terms which require an unreasonable amount of checking to be done. Of course, this requirement is largely subjective and will need to be determined on a case by case basis.
By way of example, we recently submitted a POA for lodgement on behalf of a client under which the attorney was appointed to act on behalf of a trustee of over 100 different trusts. Landgate initially objected to the POA on the basis of the administrative and interpretive burden placed on the Registrar as a result of the volume of supporting documentation. Fortunately, after several months of negotiation with Landgate, this dealing was successful, but we stress that this does not set a precedent for future dealings and parties should carefully consider this requirement when preparing POAs for lodgement at Landgate.
It is possible to grant powers to a named position within the corporation granting the POA, for example, any person who holds the position of "general manager" within the donor company. This restriction is strictly applied and it is not possible to name positions that exist within related entities including the ultimate holding company of the donor company.
In addition, the POA must contain a clause to the effect that the Registrar of Titles is entitled to rely on a person claiming to occupy the relevant position without having to make enquiries in this regard.
It will come as good news to many that Landgate, in consultation with the Law Society of Western Australia's Property Law Committee, is currently preparing a paper known internally as "Business Focused Amendments to the TLA".
While the exact scope of this paper is yet unknown, the underlying driver for the amendments is recognition of the difficulties faced by parties lodging POAs under outdated and non-uniform legislation.
In addition, in light of the report prepared by the House of Representatives Standing Committee on Legal and Constitutional Affairs2 in which there is an express recognition of the undesirability of "different and sometimes conflicting legislation governing the execution and operation of powers of attorney in each State and Territory", it is hoped that this cognisant need for uniformity in legislation within Australia will lead to, perhaps, a revolution in the POA legislative framework in WA (and nationally).
Until such time, however, s143 TLA remains and we can only encourage interstate clients to seek prior advice when contemplating registration of POAs in WA in a timely fashion to ensure that settlements or other transactions are not unduly affected by any delay in having a POA accepted by Landgate.
1 Clazy v Registrar of Titles (1902) 4 WALR 113
2 "Harmonisation of Legal Systems: Within Australia and between Australia and New Zealand" dated November 2006