ELECTRONIC CONVEYANCING SYSTEM IN SOUTH AUSTRALIA

 

Introduction

What is electronic conveyancing?

The term ‘electronic conveyancing’ refers to a conveyancing transaction where practitioners have elected to settle electronically through the electronic platform provided by Property Exchange Australia Limited (PEXA). The representatives of the parties and their financiers participate in an electronic workspace, where:

  • registry instruments are prepared and electronically signed (transfer, mortgage, discharge/release of mortgage);
  • duty may be paid as a settlement disbursement;
  • the balance of the purchase money and its disbursement are agreed;
  • the documents to be lodged for registration are checked pre-settlement at the Lands Titles Office (LTO);
  • at the agreed settlement date and time, provided the documents are in order for registration, the balance of purchase money is paid and proceeds of settlement are disbursed; and
  • the relevant registry instruments are electronically lodged for registration (which usually follows that same day).

 Electronic conveyancing does not cover the whole of the conveyancing transaction; just the preparation for and execution of settlement and registration. In relation to the settlement itself, the platform is essentially a virtual settlement room.

The regulatory framework

The principal legislation is the Real Property (Electronic Conveyancing) Amendment Bill 2015 amending the Real Property Act 1886 (SA). The amending Act and the launch of Electronic Conveyancing in South Australia will commence on Monday, 4 July 2016. See below for more information.   

The further piece of legislation is the Electronic Conveyancing National Law (South Australia) Act 2003.

Two sets of Rules have been made pursuant to the ECNL:

  • the Model Participation Rules (MPR), which govern the relationship between the electronic lodgement network operator (ELNO) and participants in the system, such as lawyers; and
  • the Model Operating Requirements (MOR),  which govern the relationship between the ELNO and the land title registries.
  • The activities and responsibilities of lawyers choosing to use electronic conveyancing are primarily governed by the ECNL and the MPR, but it should be noted that further refinements of the MPR and MOR are continuing.

 Once adopted by a particular jurisdiction, the MPR and the MOR become the Participation Rules, and the Operating Requirements, respectively. Not all jurisdictions have the same version of these requirements and rules operating at the same time - it depends upon the system readiness, the timing of the PEXA roll-out in that jurisdiction and the process of adoption in that jurisdiction. 

In SA, version 3 of both MPR and the MOR have been adopted by the SA Registrar-General and commenced operation on 21 January 2016.

 

Guidelines

Guideline for legal practitioners - Electronic conveyancing and what it means for your trust account and law practice, click here.  


Standard Property Documents

There are two major legislative changes affecting the Property Suite, namely:

1.         the Foreign Resident Withholding Tax regime, which commenced 1 July 2016; and

2.         the changes to the Real Property Act, which commenced on 4 July 2016.

The Society’s current Contract for Sale and Purchase of Land can still be used. However, for transactions affected by the foreign resident withholding tax regime (broadly, properties with a value over $2M) and for those parties wishing to settle electronically, special additional clauses will be required. Suitable Annexures have been provided below as of 25 July 2016. A completely new Contract will be made available as soon as possible (hopefully within the next 1-2 months). The Law Society Mortgage can also still be used at this stage.  There is a transition period of 12 months from 4 July 2016 during which mortgages in the current format can still be lodged.  The Society will work to revise the Mortgage to bring it into line with the new LTO forms. There is no change to the other documents in the Suite.

Click here to access or find more information about the Standard Property Documents.

Training 


Archived Information session

Please click here for a recording of the Industry Information Session, New Conveyancing Requirements and Electronic Conveyancing, held at the Society on 3 May 2016.  The Session included presentations from the Lands Titles Office, RevenueSA, the Society’s Property Committee Chair Philip Page, the Australian Institute of Conveyancers (South Australia), and PEXA Ltd.  
 

Legislation

**UPDATE as of 1 July 2016:  
Electronic Conveyancing update – the Real Property (Electronic Conveyancing) Amendment Act 2016 and the launch of Electronic Conveyancing in South Australia will commence on Monday, 4 July 2016. Please refer here for more information plus further changes including to VOI, VOA, Client Authorisation, Priority Notices, Retention of Evidence, Certifications, Mortgages, Discharge of Mortgage, Caveats, Lodging in Duplicate and Triplicate, Offences and Penalties, LTO Forms. In addition, all Duplicate Certificates of Title (Duplicate Titles) and Tenants copies of Crown Lease (Crown Leases) will be invalid from Monday 4 July 2016.

**UPDATE as of 4 July 2016: 
Electronic Conveyancing update – the Real Property (Electronic Conveyancing) Amendment Act 2016 and the launch of Electronic Conveyancing in South Australia commenced on Monday, 4 July 2016. Please refer here for more information.

LTO Notice to Lodging Parties dated 4 July 2016 (No 190) re Implementation of Electronic Conveyancing and New Conveyancing Requirements.  Please click here
           
In order to deal with work in progress, a 4 month probationary (or transition) period will commence on 4 July 2016. To partner with and to assist industry professionals in explaining these changes to your clients, an Information Brochure has been developed by the LTO for your use and dissemination. To keep up to date see the LTO’s Customer Information Bulletins Page, click here.

 
Progress of Bill, links below:

Real Property (Electronic Conveyancing) Amendment Bill 2016 (SA)

House of Assembly:-
Second reading speech
Explanatory report
Passed by the House of Assembly

Legislative Council:-
Received in the Legislative Council
Second reading speech
Bill as passed by both Houses

Other legislation:

Electronic Conveyancing National Law (South Australia) Act 2003 (SA)
Real Property Act 1886 (SA)

 

Transitional Arrangements

LTO Notice to Lodging Parties dated 17 June 2016 (No 188) re Transitional Arrangements.  Please click here

LTO Notice to Lodging Parties dated 29 June 2016 (No 189) re New Conveyancing Requirements.  Please click here

LTO Notice to Lodging Parties dated 4 July 2016 (No 190) re Implementation of Electronic Conveyancing and New Conveyancing Requirements.  Please click here

LTO Notice to Lodging Parties dated 6 June 2016 (No 191) re Electronic Conveyancing – A Month in Review.  Please click here

        

 

Property Exchange Australia (PEXA)

What is PEXA? PEXA is a property exchange network that allows secure, online lodgement and Financial Settlement
How PEXA works 
Click here for PEXA registration 

Verification of Identity (VOI)

LTO Notice to Lodging Parties dated 24 May 2016 (No 186) re Verification of Identity Requirements Version 3 and Verification of Authority Guidelines
Please click here

LTO Notice to Lodging Parties dated 29 June 2016 (No 189) re New Conveyancing Requirements noting that Version 3 of the Registrar-General’s Verification of Identity Requirements will come into effect from 4 July 2016 
Please click here

 
Australia Post
Lands Title Office VOI checks in NSW
ID Secure
Zip ID 
Voi Australia

 


Verification of Authority (VOA) - Proposed Version Only

This version of the Verification of Authority Guidelines will be effective from the commencement of the Real Property (Electronic Conveyancing) Amendment Act 2016.

LTO Notice to Lodging Parties dated 29 June 2016 (No 189) re New Conveyancing Requirements noting that Version 3 of the Registrar-General’s Verification of Authority Requirements will come into effect from 4 July 2016 
Please click here
 

Client Authorisation - Proposed Version Only

LTO Notice to Lodging Parties dated 6 June 2016 (No 187) re Client Authorisation - Please click here

Further information regarding Client Authorisations, see point 4 in the LTO Notice to Lodging Parties dated 29 June 2016 (No 189) re New Conveyancing Requirements.  Please click here

 This version of the Client Authorisation will be effective from the commencement of the Real Property (Electronic Conveyancing) Amendment Act 2016.  An authorisation must be in the prescribed form and properly completed.

An acceptable Smartform version of this form can be found on the ARNECC website.

ARNECC has published a "Guidance Note on client authorisation".


LTO Forms relating to the Real Property (Electronic Conveyancing) Amendment Act 2016

Please refer to the Land Services Group for the most up to date information on LTO forms.  Click here.


Useful links

Australian Institute of Conveyancers (SA)
Australian Registrars National Electronic Conveyancing Council (ARNECC)
Law Council of Australia re Electronic Conveyancing
Model Operating Requirements (MOR)
Model Operating Requirements Guidance Notes
Model Participation Rules (MPR)
Model Participation Rules Guidance Notes
Property Exchange Australia Ltd (PEXA)