Background

Many solicitors are co-trustees for family trusts and will be registered in that capacity on the title for any land owned by the trust. Some might be registered on 100 or more titles.

The trend is now for law firms to utilise trustee companies to allow changes to directors without the need to change the Land Titles Register. E-dealing is an expedient way to facilitate the change of trustees on the title.

Fact scenario
Solicitor is registered with husband and wife as co-trustees on 200 different titles.

• The solicitor now wishes to retire from the trusteeship and to utilise a trustee company and record the changes on all affected titles.
• The solicitor is authorised to certify and sign e-dealings.

For this scenario it is assumed that the necessary Deed of Retirement and Appointment of New Trustee has been signed and any mortgagee consent obtained.

Certifications are made on behalf of both the transferee and transferor. The transferor in this situation includes a private company so an Authority and Instruction form is required for both parties.

Currently e-dealing does not allow for a transfer of a part interest. Accordingly, it is not possible for the solicitor only to transfer his/her interest to the new trustee company. All registered proprietors must transfer their respective interests.

Completion of the A & I for the 'husband and wife':
'Full name of client' should note 'husband and wife' as transferor and transferee

'Transaction' should refer to:

• 'Name of Other Party' as 'husband and wife and Trustee Company';
• 'Deed of Retirement and Appointment of New Trustee' (date).

Include the title reference and street address.

Signing:

Transferor
The husband and wife should sign the A & I in accordance with the guidelines, with a copy of their photo IDs attached and the witness should sign. Alternatively, if signing and certifying solicitor witnesses the clients' signatures personally and has known them for more than 12 months the ID exception can be used. (See Guideline J, Guidelines for the Use of Landonline for an Electronic Transaction.)

The retiring solicitor in this scenario is the one who will certify and sign the e-dealing. The solicitor essentially wears two hats; one as the trustee and the other as the solicitor effecting the registration. The solicitor should still complete an A & I, even though it may seem to be an unnecessary duplication. That may be done on the same A & I as the other trustees or on a separate form, depending on which option is most expedient.

Transferee
The A & I signed by the husband and wife makes it clear that they have signed that form in their capacity as transferor and transferee. They are not required to sign anything further.

The Trustee Company must have a separate A & I. This must be signed by a director and witnessed. In this scenario the director's ID must be attached and someone must attest to his identity by signing the A & I identity section.

The same principle applies as noted above, namely, that the solicitor is not signing in his personal capacity but rather on behalf of the corporate, hence the distinction and need for an A & I to be signed by the solicitor. The A & I will also give an element of protection to the solicitor by having a transparent and distinct paper trail establishing the rationale for altering the Register.

One A & I form may be used for all 200 transfers. It is necessary to have an annexure schedule noting each title affected and the parties. For example, have a table with headings of title reference, transferor and transferee.

On a Compliance Review the A & I signed by the husband and wife would be produced. In addition the Trustee Company A & I would be produced with the relevant title(s) in the annexure schedule highlighted.

Savings?
Once a template A & I is prepared it is simply a matter of inserting the title and the husband and wife's names. It could even be emailed to the client for them to print out sign and return. There is no abstract lodgement form required.

The cost saving in registration fees is 200 x $29 = $5,800 as opposed to registering manual transfers.