Significant amendments to the Real Property Act 1900 (NSW) commence on 11 October 2021, requiring dealings with interests in land to be lodged for registration electronically (rather than in paper form), which has implications for the way parties undertake common transactions such as leases. The amendments also remove the requirement for the Registrar General to issue certificates of title, to require the production of certificates of title, and the requirement for landowners or mortgagees to produce or rely on certificates of title in conveyancing transactions.
Electronic lodgment of dealings
From 11 October 2021, all dealings with interests in land, regardless of the date that they were signed, must be lodged for registration electronically and will no longer be accepted for lodgment in paper form at the office of NSW Land Registry Services.
As part of the transition to 100% eConveyancing, NSW Land Registry Services will allow for a limited number of “out-of-scope” dealings to be prepared in paper form and lodged electronically through the online property transaction platform. While this is generally aimed at less common land dealings, it will also enable the lodgment of leases prepared and executed in paper form prior to 11 October 2021 which remain unregistered at that date.
From now on, leases will be prepared with an electronic terms sheet (which combines the information currently set out in the NSW Land Registry Services lease cover pages and the usual leasing reference schedule), and a separate memorandum setting out the terms and conditions of the lease. Landlords and tenants will still be required to sign a physical copy of the lease, however, the signed memorandum will be uploaded to the electronic lodgment platform by the lawyer for the landlord, along with the electronic terms sheet for the lease, and electronically signed.
Critically, this means that parties to property transactions (including leases) will need to engage subscribers to an electronic lodgment network (lawyers or licensed conveyancers) to act for them, otherwise their land dealings will be unable to be registered. It also means that verification of identity and eConveyancing client authorisation forms must be kept up-to-date, otherwise subscribers will be unable to register dealings on behalf of their clients.
Abolition of certificates of title
Since late 2018, the titles for all properties mortgaged to any of the major Australian financial institutions have been held in electronic form only.
From 11 October 2021, all remaining paper certificates of title cease to have any legal effect.
Ownership of land, the identity of other parties holding interests in land, such as mortgagees and lessees, and the existence of easements and other interests, will continue to be determined by the contents of the computerised Torrens title register. A title search of the land titles register will remain necessary to obtain accurate and up-to-date title information regarding a property.
Parties who are holding paper certificates of title as informal security for the payment of debts or the performance of other obligations should consider what alternative arrangements they might put in place to secure their position once paper certificates of title cease to have any value.
The Mills Oakley property team is available to assist with any enquiries in relation to the impacts of these developments.