Update

The detailed design work for the next stage of e-dealing (Landonline Phase 3 'LP3') is well under way. The primary emphasis is on usability by solicitors and support staff. In order to achieve this solicitors and legal executives are actively involved in the design process.

For example, the client Authority and Instruction form (A & I) will generate and pre-populate from within Landonline. There will also be the ability to view and amend the final proprietor status as it will display on the title in order to assist with the more complex proprietorship structures.

It is important to note that the date of 1 May 2007 is the crucial date for all conveyancing firms to be e-dealing. Without such capability it will be impossible to process any discharge. In such circumstances that will effectively mean that unless the firm can carry out e-dealing, they will not be able to act on any transaction that involves a discharge. Full delegation to an agent will not be possible as only a solicitor in practice can Certify and Sign a discharge (or any other instrument) for which a LINZ e-dealing Digital Certificate must be held.

With the recent mandatory announcement there has been much speculation as to how one might continue to be involved with conveyancing without obtaining an e-dealing licence.

Some firms have simply stated that they will outsource it to search and registration agents.

Process

While the preparatory and registration aspects may technically be outsourced, the Certify and Signcomponent must be done by a solicitor who takes full responsibility for the certifications that are made. Those certifications must be made by a solicitor in practice.

The model proposed by the larger agency firms acknowledges that the Certify and Sign component will need to be attended to by a solicitor in the firm that receives the client's instruction.

In order to have access to the system to be able to Certify and Sign, an e-dealing licence is required and the Certify and Sign solicitor must have their own Digital Certificate. This is an essential element to adhere to the strict security requirements for accessing and changing the Register. It is also a key facet of the non-repudiation protection that allows LINZ to delegate this privilege to solicitors.

It should be noted that a proficient user can create a typical dealing in a few minutes. This is largely achieved by the automated completion of information by the system. For example, once the title is entered the Registered Proprietor automatically displays in the Transferor field. Upon entering the Transferee it is automatically carried forward to the Mortgagor field of the mortgage. The system prevents an invalid mortgage memorandum number from being entered. The pre-validate option allows for checking to ensure that the dealing will not be rejected prior to registration. This occurs instantaneously at the push of a button. Registration is also instantaneous when the submit button is pushed.

Delegation

The solicitor who Certifies and Signs the instrument remains personally accountable and liable for the certifications made. Anyone who considers making such certifications without some direct knowledge of the client and file should do so only after fully considering the implications of what he or she is doing. Those certifications relate to the identity, capacity and general bona fides issues and involve the requirement that evidence of the truth of the certifications will be retained for a prescribed period.

The system does not currently allow for a splitting of registered proprietors' interests. Accordingly, all proprietors must be noted as Transferors and separate certifications cannot be made for different proprietors.

Obviously, if one or more of the existing proprietors is to remain on the title, then they would be noted as the transferee(s).

Where a transfer needs to be effected for the purposes of settlement of a relationship property matter, it is necessary to nominate one solicitor to Certify and Sign on behalf of all proprietors. In such circumstances it may well be appropriate to accept a delegated A & I from the other solicitor¡¦s client to effect registration. The solicitor accepting such a delegation must be satisfied that the certifications being made are correct and should make further inquiry as necessary to be certain of the basis for those certifications.

It is suggested that the solicitor for the party in possession of the property should carry out the conveyancing aspect, or otherwise, by agreement.

Additional functionality facilitating splitting of interests and separate representation will be allowed for in the next stage of e-dealing. This will be available by the final mandatory date of July 2008.

Duncan Terris
NZLS e-dealing Consultant
The Property Lawyer
Volume 7, Issue 2, July 2006