on 23-09-2016 10:28 AM
Many conveyancing practitioners believe that their "peak body" such as AICVIC or the the Law Institute represent them and seek to advance their interests in negotiations during these early stages of PEXA development.
My view is that these bodies may have a general understanding about their members' needs and views, but as in most cases of union type representation, these bodies tend to develop their own world view. Quite often a form of Stockholm Syndrome develops, and the peak body tends to accept, or even adopt, the views of parties opposed to the interests of their own members.
Here is an example. I have been told that one of the peak bodies has suggested that PEXA should include access to bank Discharge Authority forms in the PEXA system, for easy access by conveyancers and property lawyers. On the face of it this sounds like a good idea, and there is no doubt that the peak bodies think they are assisting their members by pushing for this. But wait!
Do conveyancers and property lawyers REALLY want access to bank forms? The assumption behind this move is that conveyancers and property lawyers accept that it is their role to complete bank forms for the banks, to make the job of bank staff a little easier. In fact, these bank forms have nothing at all to do with the conveyancing process, and should be dealt with entirely by the banks. If the peak bodies really want to assist us they should be telling the banks that their members are not to be saddled with tasks that are more appropriately dealt with internally by the banks.
In my view, the Discharge Authority, the Duties Form 53D, Duties Form 61, Duties Form 62, Duties Form 6A and any other documents that require completion by bank customers, should be obtained from the customer by the bank. In particular, if I don't have to deliver a particular document to a bank as part of a PEXA settlement, then I should not have to when it is a non-PEXA paper settlement.
The move to PEXA should not be a reinforcement of old procedures that were foisted upon practitioners back in the days before fixed-fee conveyancing become popular (when lawyers could charge for each item of time consuming work). Rather, it should be a time to take stock and determine the true limits to our role.
So, getting back to my basic question - who represents conveyancers and property lawyers in the PEXA development process? We have to look after ourselves by ensuring that our interests are properly conveyed to PEXA and to those (i.e. the banks) who desire to use us and our valuable time. This forum is one way to do that. Another is to refuse to undertake tasks that we would not have to undertake if the conveyancing matter is between two parties with clear title.
Of course, if a bank wants to pay me for preparing their Discharge Authority and other documents the bank requires at settlement, I am only too happy to assist. But I will no longer simply absorb the cost of my time and effort providing these when my client is paying a fixed-fee.
How do others view the situation?
on 28-09-2016 01:22 PM
Thanks for being an active member here. I'm adding to the conversation where I can.
As I understand it, completion of the Discharge Authority is a practical decision made by many lawyers/conveyancers, so I accept there are differing views in the industry and will leave that question to the side.
The SRO forms you referred to are required to be completed by the purchaser or their practitioner in a PEXA scenario. The Duties Online application needs to be completed by the Subscriber (lawyer/conveyancer), not the bank, in an electronic settlement in Victoria.
With regards to your questions about who represents conveyancers and lawyers in PEXA developments. The Participation Agreement provides for PEXA to consult with peak industry bodies (AIC, Law Council and the ABA all form the e-Conveyancing Group or ECG) in relation to proposed contractual changes, so in that sense, the peak bodies do in fact represent their members in PEXA. They are also participants in various industry groups and forums, giving their members a collective voice in industry transformation.
This Community also gives all network members a voice. One of our key forum boards is dedicated to collecting input, having a transparent conversation and enabling up-voting. This board is reviewed weekly by our cross-functional Community Feedback group. Perhaps this can also support members’ discussions with peak bodies.
on 28-09-2016 03:51 PM
Just on the point of the Discharge Authority, I must reiterate that this document is one that was invented by the banks in order to collect information from the bank's customer in order to assist the bank with the finalisation of its customer's loan account and preparation of the mortgage discharge. It has nothing whatsoever to do with the customer's lawyer/conveyancer. It has become commonplace for the banks to use the lawyer/conveyancing as an unpaid clerk, to complete the form for the customer, or to answer questions about it, and then to deliver it to the bank. If the bank then loses the form, the bank simply 'requires' the lawyer/conveyancer to provide another one, usually as a matter of urgency.
When we discuss this is the context of a 'practical decision' we are really acknowledging that the banks have made a decision that allows them to use the customer's lawyer/conveyancer, so as to release bank staff to attend to other tasks - now that's practical! It's also grossly unfair and needs to be changed.
With regard to the completion of other forms, there are NO forms that must be completed by a purchaser's legal representative. If this were the case all purchasers would have to engage a legal representative, and there could be no self-acting purchasers at all. The true situation is that there are certain documents that a purchaser must complete, and where a lawyer/conveyancer has been retained it tends to fall to this person to prepare the documents.
What's interesting about this is the fantasy surrounding the execution of these forms. Everyone pretends that the purchaser knows the content of the form they are signing, when it is invariably the case that the purchaser simply turns to the "Sign Here" sticker, signs and returns the document. As the legal practitioner who prepares these forms, it seems to me that a much more practical and realistic way to prepare them would be to have the client provide and confirm the information on which the completed form is based, and for me to sign on the client's behalf pursuant to a Power of Attorney. This POA would extend the Client Authorisation to take into account the SRO forms that can be executed in this way.
In future I will have to sign the Transfer of Land on this basis, so why not other forms?
With regard to peak bodies representing those of us at the coalface, but must demand a reality check. Sure, they take an interest at a macro level, but when it comes to advocating on issues such as the Discharge Authority (as discussed above) they would not have a clue. It's an example of representative democracy being insufficient to deal with the small, everyday (but very frustrating) issues that are the small stone in the shoe of ordinary practitioners.
on 14-11-2016 09:49 PM
Embracing change always comes with a difficult first step into the unknown.
If the role of the conveyancer is no longer to gather and assist vendor and purchasers to complete the various authority forms (which is my understanding of what is being suggested above?) , then the value that can be provided by a conveyancer may need to be reassessed. A better way to look at this evolution to e-conveyancing is create savings by removing or lessening the administrative costs of paper based forms. This can be achieved by a change such as online or smart forms which would pre-populate the authority databases and reduce the burden created by endless paper forms. This change would again be shared responsibility by all parties.
My view would be that PEXA and the e-conveyancing process provides opportunity for competitive advantage, the creation of process efficiency and potentially a greater profit margin for practitioners who operate electronically.
on 15-11-2016 05:15 AM
Conveyancing has never been a simple process of gathering information and filling in forms. This is why conveyancing kits have never been a threat to the industry.
Conveyancing has at its core the undertaking of legal work, the main part of which is the providing of legal advice to enable the client to make sound decisions.
The problem that conveyancing professionals are facing is that banks, brokers, and even the State Revenue Office tend to see us as an outsourcing option to be exploited, particularly for the task of information gathering and form-filling.
Consider the expectation of the SRO that we will complete the Duties Online forms, but still prepare a paper version of the same information to be held BY US for 7 years without the SRO ever bothering with it.
I don't mind replacing paper forms for the online Duties Online Option, but the SRO tells me that I must complete a paper version of the information IN ADDITION TO that entered into Duties Online. Thus, Duties Online is not an alternative to the paper system, but merely an extension of it.
This may result in an increase in efficiency for the SRO, which no longer has to collect and check paper forms, but it is an imposition on me because I am now performing the SRO's task as well as my own.
We must ensure that we share in the efficiencies of e-conveyancing, and not simply become the willing horse on whose back other can take a free ride.