In accordance with the Land Title Regulation 2022 (‘Regulation’), as of 20 February 2023, Queensland has followed suit with New South Wales, Victoria, South Australia and Western Australia to make eConveyancing mandatory for certain land title transactions. If you are looking to sell or purchase a property, it is important to know how the conveyancing process has changed.
How does eConveyancing work?
Unlike a paper settlement, which involves representatives meeting in person and the exchange and lodgement of physical paperwork, eConveyancing allows for the conveyancing process to occur completely online. Firstly, the parties are required to complete identity verification and client authorisations. Legal practitioners and settlement agents acting for the buyer and seller will then connect via an Electronic Lodgement Network (‘ELN’), such as PEXA, along with any financial institutions involved and complete all necessary steps to finalise the transaction.
What documents are required to be lodged electronically?
The Regulation states that a ‘required instrument’ must be lodged using an ELN unless an exemption is applicable. The required instruments include:
- an instrument of transfer (to transfer land to another party);
- an instrument of mortgage (to register a mortgage on title of the land);
- an instrument releasing a mortgage (releasing a mortgage registered on title of the land);
- a caveat for a lot (which preserves the property title and informs others of a party’s interest over the land);
- a request to withdraw a caveat;
- a priority notice (to preserve the priority or instruments that are lodged over the title of the land);
- a request to extend a priority notice (to extend a priority notice by an additional 30 days);
- a request to withdraw a priority notice; and
- an application to be registered as a personal representative for a registered owner of a lot who has died.
What documents are exempt?
The required instruments are exempt in the following circumstances:
- where a party is an unrepresented individual and is not a subscriber to an ELN;
- the ELN and/or Titles Queensland system does not have the functionality to complete the transaction (an example is recording a transmission by bankruptcy);
- when the eConveyancing lodgement was attempted, but circumstances beyond the lodger’s control prevented the lodgement from proceeding (examples include if the lodger experiences internet access issues or the ELN was unavailable for use that day);
- the instrument is required to be lodged with another instrument that cannot be lodged using eConveyancing (an example is where a transfer must be lodged with a plan of survey and the plan of survey cannot be lodged using eConveyancing);
- the instrument is required to be lodged with another instrument which includes a party who is an unrepresented person;
- the instrument replaces an instrument that was lodged using eConveyancing and subsequently rejected or withdrawn and for which an associated financial transaction has been completed (An example is where a form to transfer land to another party is lodged, and an error is identified which requires the form to be re-lodged with the correct information; which will be acceptable in paper form);
- the instrument being lodged gives effect to a transaction that is not an ELN lodgement or ELN transfer under the Duties Act 2001 (Qld);
- documents that have been executed in paper form prior to 20 February 2023.
If one of the abovementioned exemptions apply to a required instrument, paper documents may be lodged instead. An Exemption Request Form must be completed, prepared, and lodged in conjunction with the paper form of the required instrument.
What are the benefits of mandatory eConveyancing?
The transition to predominantly paperless conveyancing transactions ensures that settlements are completed faster, more efficiently and with increased security. Not to mention it is better for the environment!