Questions from attendees from the four SA Industry Forums in May 2016.
Panel Members included representatives from Land Services Group, Revenue SA, SA Law Society, AICSA & PEXA
Both the mortgagor and mortgagee must sign the original mortgage which may be lodged in paper with the required certifications with the LTO.
Alternatively, a document in the same terms may be lodged in paper or electronically in the LTO. The requirements for signing and certifying that document vary slightly between paper and electronic depending on whether the required certification is given by the mortgagee or a “Prescribed Person” (being a legal practitioner or registered conveyancer representing the mortgagee).
For transactions lodged in paper, a document in the same terms need only be signed by the mortgagee. The certifications on that document may be given by the mortgagee (where it is an ADI) or a “Prescribed Person”. The precise wording of the certification is set out below. The required certifications are printed on the relevant LTO form.
For electronic transactions, a mortgagee that is an ADI may sign and certify a document in the same terms to be lodged through PEXA. However, if a document in the same terms is to be lodged by Prescribed Person (which is necessary where the mortgagee is not an ADI), the workspace requires that Prescribed Person to sign and certify the document on behalf of the mortgagee.
Whether lodged in paper or electronically, the certification given by the mortgagee or the Prescribed Person (being the legal practitioner or registered conveyancer representing the mortgagee) as follows:
“The Mortgagee, or the Prescribed Person is reasonably satisfied that the mortgagee it represents:
These requirements are largely set out in the new section 128 of Real Property Act.
The duplicate certificate of title will cease to be a valid document from 4 July 2016. It is not necessary to destroy or deface the (invalid) document.
Practitioners/conveyancers holding a duplicate certificate of title should seek instructions from the client for whom they are holding the document about its disposal.
Where a duplicate certificate of title is held on behalf of a client as security for an equitable mortgage, the repeal of section 149 of Real Property Act removes that security: the practitioner/conveyancer should seek urgent instructions from their client about lodging a caveat or otherwise securing the debt.
Yes, provided they have been created as a User in the Subscriber’s profile. Each User will have their own credentials for logging into PEXA.
Workspaces can be viewed by all staff who have been created as Users in your Subscriber Profile, however you will need to ensure that a User has been assigned the necessary signing permissions and has their own digital certificate. If source funding is to be provided from your trust account, you will need to ensure that a User is assigned the permission of “signer - trust account authorisation”, has been linked to your trust account and verified (which requires that this person is listed at the financial institution as a signatory to your trust account. The person who is assigned the permission of “Signer – Documents” will need to be either an Australian legal practitioner or registered conveyancer.
Your digital certificate is stored on an encrypted USB token and will be delivered by mail. The password will be sent shortly after in separate correspondence.
Digital certificates are used to electronically sign in PEXA. They are a unique identifier of a sender in a digital form. While they are intended to provide the same security as signatures in the physical world, they are not a scanned image or picture of a sender’s wet ink signature. Rather, digital certificates use public key cryptographic technology to secure information that passes from one computer to another over a network. Data is encrypted by the sender when they sign the document with their digital certificate to prevent it from being read and understood. The data is then checked by the receiving computer using a digital certificate to verify the integrity of the data and to ensure that it was not altered in transit.
A digital certificate can be used as follows:
In order to digitally sign in PEXA, a User must have a digital signing certificate and have been granted signing permissions in your profile. There are three signing permissions:
To digitally sign Land Registry instruments, you must be a legal practitioner or a registered conveyancer. Only a trust account signatory listed at your bank can be granted the permission of “Signer – Trust Account Authorisation”. Any User can be linked to your trust account in your profile and must also be granted the permission of “Signer-Financial Settlement” however PEXA recommends that this permission be given to the person who would normally approve cheque directions.
No. They only need to authorise the source line item if committing funds from trust. However, a Financial Settlement Signer must sign every FSS.
All pricing for the different instruments are available at https://www.pexa.com.au/pricing-schedule . From 1 July 2016, for a standard Transfer $107.80 including GST is payable by each of the transferor and transferee.
From 1 July 2016, $122.98 including GST for 2 to 20 titles in the same Workspace (these must be related and capable of being included in the same transfer).
Savings will vary from business to business. However, by settling using PEXA, the following costs may be avoided:
Practitioners are also likely to experience significant time savings because PEXA’s lodgement verification checks mean that practitioners will be notified prior to settlement if documents will not be acceptable for lodgement. This reduces the likelihood that the practitioner will need to undertake additional work when documents require requisition. Practitioners will also save time by not having to make a sometimes lengthy phone call to the bank to book settlement. Furthermore, there is no need to send the transfer to your client (and if you act for the purchaser, the other side) for execution. This eliminates time spent drafting cover letters and following up the transfer.
Pursuant to Insurance Rule 4 of the Model Participation Rules, a legal practitioner or licensed conveyancer who holds fidelity cover or has contributed to the fidelity fund (or on whose behalf a contribution has been made) is deemed to comply with this requirement. PEXA seeks a copy of your practising certificate or conveyancing licence as evidence that you satisfy the Insurance Rules.
In South Australia, transactions that are currently in scope are Transfers, Discharges of Mortgage, Mortgages, Caveats and Withdrawals of Caveat. Encumbrances cannot currently be lodged using PEXA. However, if a title is subject to an encumbrance which is to be transferred with the land, the title can be transferred using PEXA. If a “lift and replace” of an encumbrance is required, this transaction cannot be performed using PEXA.
This is not currently in scope.
This is not currently in scope.
Yes, they will be in PEXA in an upcoming release.
Trusts are not currently in scope.
Stringent security requirements are applicable to the PEXA System and all PEXA Subscribers. This affords Subscribers confidence that the network is secure. PEXA’s security is tested regularly in accordance with PEXA’s obligations in the Model Operating Requirements. PEXA employs industry benchmarked security standards and is heavily regulated by the Australian Registrars’ National Electronic Conveyancing Council.
Yes. Whilst PEXA automatically performs Title Activity Checks at designated intervals, this does not provide the same level of detail as a paid title search. A Title Activity Check will only indicate if there has been any activity on the title since the previous Title Activity Check.
The attorney will need to sign the Client Authorisation. The identity of the attorney must be verified and a copy of the Power of Attorney retained. A search of the Power of Attorney Register should be undertaken to ascertain if the POA is registered and has not been revoked. A copy of the POA should be obtained from the Register (where registered) as the primary source document. The POA must be checked to ensure that the attorney has power to deal with the land and to ascertain any special requirements.
Yes, the rules regarding registration of a power of attorney still apply. The power of attorney cannot be lodged electronically through PEXA.
Yes, except for caveats and priority/settlement notices for which the Client Authorisation is optional. There are three levels of authority which can be selected. “Specific Authority” relates to the transaction details set out in the form. “Batch Authority” relates to numerous transactions that are attached with the form. “Standing Authority” can cover client authority until the Revocation or expiry date listed in the form.
No. Verification of authority is also required. The Client Authorisation is optional.
In accordance with Model Participation Rule 6.6, the Subscriber must retain supporting evidence for at least 7 years form the date of lodgement of the Registry Instrument or other electronic document. Hard or soft copy is acceptable for archive. Further details are available in Model Participation Rule Guidance Note 5 – Retention of Evidence. http://www.arnecc.gov.au/__data/assets/pdf_file/0011/207776/MPR_Guidance_Note_5_-_Retention_of_Evide...
No. If the stamp duty assessment cannot be completed in RevNet, then the verification service between PEXA and RevNet cannot operate and the transaction cannot proceed in the electronic channel.
No, they are not currently in scope.
Yes. PEXA Direct will travel to regional areas of South Australia. Webinars, training and support are also provided by various PEXA teams. Please refer to https://www.pexa.com.au/pexa-training for further details. PEXA also offers a virtual training service.
PEXA does not charge a fee for registration, however if you order more than one PEXA Digital Certificate, each additional digital certificate will cost $144.87 (the first digital certificate is free). Also note that each person who signs the PEXA Participation Agreement will need to have their identity verified and a fee may be charged by the identity agent.
There are no on-going fees. All PEXA pricing can be viewed at https://www.pexa.com.au/pricing-schedule
Operating Hours can be found in the Service Charter at www.pexa.com.au/service-charter.
PEXA Support is available for 7am – 10pm AEDT/ST Monday to Friday. Operating Hours can be found in the Service Charter at www.pexa.com.au/service-charter
The four versions of the contract of sale (REISA, AIC, Law Society and Auctioneers and Appraisers) are all in the process of being updated.
Yes. All four versions of the SA contract of sale are currently under review.
Each party has clear visibility of the amounts to be paid on the destination side of the financial settlement schedule. However, unless you are responsible for the line item, you will not be able to see the recipient’s name and account particulars. Practitioners may elect to pay all surplus to their trust accounts and account to their client after the transaction. Note however, that this may already be visible on one side of the transaction in paper - where the Purchaser is being asked to draw cheques including for the Vendor’s conveyancing fees.
A practitioner must take reasonable steps to verify the identity and authority of a client and any person who signs a Client Authorisation on the client’s behalf. Any documents used to verify the identity or authority should be inspected to ensure that they are genuine, current and original. If this is not done, it is unlikely that the practitioner will have taken reasonable steps. Model Participation Rules Guidance Note 2 – Verification of Identity provides further guidance.
Each participant will be in the same Workspace but will only prepare and Digitally Sign the documents that are relevant to them. All documents are submitted for lodgement in one Lodgement Case.
On the PEXA website there is find a member search https://www.pexa.com.au/member-search. When you are logged into the PEXA network, you can also search via a tab on the PEXA Dashboard as well.
Yes, the PEXA Subscriber who represents the Proprietor on Title (vendor) can invite the PEXA Subscriber for the Incoming Proprietor (purchaser) and vice versa. They will then invite the banks into the Workspace (if applicable).
In the Transfer Guidelines, it is noted that generally the Proprietor on Title should invite the Incoming Proprietor into the Workspace.
Cloud computing offers a large spectrum of technology offerings supported by a wide variety of companies around the globe. Any use of cloud computing should be treated in the same manner as you would with traditional software or infrastructure projects and professional services should be sought whereby an organisation is unfamiliar with that technology set.
The security of cloud computing is very specific to the implementation and the security controls that organisation chooses to deploy on the cloud. It is our view that cloud computing can achieve high levels of security and compliance if the implementing organisations understands the security risks, technology and adopts a security first approach.
Material for publication that can be utilised to inform the public will be made available in the coming weeks.
The Real Property Act Reforms and electronic conveyancing process has been discussed with the insurer of the SA Registered Conveyancers Professional Indemnity Insurance Scheme in each of the last few years.
The insurer’s view is that the requirements to verify the identity and authority are more robust than the processes previously undertaken and consequently the risk of claims from fraud is reduced. It has indicated that, in the absence of actual claims, premiums will not increase as a consequence of the implementation of the Reforms and electronic conveyancing.
The LSSA`s Director of Law Claims informs us-
`Both Lawguard Management Pty. Ltd., which manages the SA Legal Practitioners PII Scheme on behalf of the LSSA, and the underwriters to the Scheme, are aware of the implementation of the national electronic conveyancing processes and reforms to the SA Real Property Act. The level of contributions payable by Law Practices to the Scheme for the 2016-17 policy year have already been set and were not impacted in any way by reason of these changes. It cannot be stated, what, if any, impact these changes may have on the level of contributions in any future policy years. If any significant adverse claims history were to emerge in the property law area of legal practice, that may influence the calculation of contributions. However, in the absence of such a development, it is not anticipated that these changes would have any consequences in terms of future contribution levels. Many different factors are taken into account in the calculation of contributions for each policy year.`
No – the word ‘if’ is used to cater for transactions that must still be executed and witnessed or are exempt from the use of a CA.
Prudent conveyancing practice would see the utilisation of a Priority Notice as a useful tool in the provision of conveyancing services.
There is no intention at this stage.
A RevNet eConveyancing batch should be created as late in the PEXA process as possible to comply with the overdue batch functionality (9 days from when the batch is opened), although following lodgement of the document via PEXA an additional 3 days will be allowed to receive payment and end/submit the batch.
It is suggested that you do not create an eConveyancing batch until you know that the batch will be processed through eConveyancing, for example:
Whether the document actually needs to be processed in RevNet or not. For example where you currently process mortgages in RevNet to pay LTO fees, these will not need to be processed in a RevNet batch as the fees can be paid through PEXA. There will not be a Stamp Duty Verification on these document types in PEXA
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