Not all of the existing 74 registrable dealing and instrument types in use in NSW will be available in electronic conveyancing. Which ones are chosen for implementation in NSW will depend upon how often they are used, how suited they are to an electronic format, and whether any special circumstances warrant their inclusion or exclusion. Consultation with industry will be necessary before final decisions are made.
The most likely ones
The principal objective of electronic conveyancing is to accommodate the most common dealing types – those required in the sale of a private dwelling, for example. These transactions typically involve a discharge of mortgage, a transfer and a new mortgage. These three dealing types alone account for 86% of all documents lodged in NSW at present and a majority of them are straightforward and therefore suited to electronic conveyancing.
Others that will be considered
After discharges, transfers and mortgages, the next most common instrument types are: caveats, including withdrawals (2.3%), leases (2%), transmissions (1.4%), name changes (1.3%) and notices of death (1.1%). Which of these are made available in electronic conveyancing will be the subject of detailed analysis and consultation in the months ahead. Caveats including withdrawals, transmissions, name changes and notices of death are most likely to facilitate maximum use of electronic conveyancing.
Some Issues Involved
Implementing electronic conveyancing will also require some changes to the way existing dealing types are used.
Transfers are likely to be made up of two separate but counterpart components, where the practitioner acting for the vendor completes one part and the practitioner acting for the purchaser completes the other. The electronic conveyancing system will ensure the information contained in both counterparts is consistent and the counterparts are linked. Mortgages are also likely to be made up of two separate but counterpart components, one for the purchaser’s practitioner to complete and one for the lender’s representative to complete. Mortgages and their associated memoranda will also need to be standardised and Notice of Sale data integrated with relevant dealings.
Each dealing type included in electronic conveyancing will be made up of standardised and fixed operative words interspersed with data fields. A unique dealing type identifier will be used to insert the standardised operative words among the data fields to produce the instrument for uniform screen display or printing during preparation, during examination after lodgment, or as the result of a public search after registration. The specific requirements for electronic instruments are likely to be prescribed in legislation in an equivalent manner to the existing requirements for paper instruments.
Source Electronic Conveyancing in NSW - Newsletter No. 15
- A lot of the above is not new news. What is news is the introduction to the concept of Counterparts and execution by practitioners. Transfers I can understand will be signed off by Practitioners for the Vendor and Purchaser. But why the concept of Counterparts? I would have thought the obvious is a common data set that each Practitioner approves and signs off. Interesting that EC-NSW throws this tidbit out about Counterparts but no explanatory memoranda. Come on guys, why two counterparts?
- Also new news is the concept of "Mortgages are also likely to be made up of two separate but counterpart components". Now here is something I dont think Practitioners will feel all that comfortable with and that is executing Mortgage Counterparts on behalf of Mortgagor clients. And is it all that practical? There are better solutions than this and they dont involve Legal Practitioners executing mortgages on behalf of clients. Forget Practitioners. Borrowers and Mortgagors should deal direct with the banks. There is a real solution which involves secure electronic files and the client signs a document referencing the unique electronic file. Not hard really.
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