Does a Power of Attorney in QLD need to be registered as part of the VOI/CAF process?

[Morvanna]

There have recently been quite a few Members querying if settlement is to occur via PEXA, does the Power of Attorney (POA) still need to be registered with Titles or is the Verification of Identity (VOI) on the Attorney and a copy of the POA sufficient? 

The Participation Rules outline that the following requirements:

• take reasonable steps to verify the authority of an attorney (Client Agent) to bind a seller (Client) to any Client Authorisation and to the Conveyancing Transaction(s) the subject of the Client Authorisation (Participation Rule 6.3.1(d));
• take reasonable steps to verify the identity of an attorney (Client Agent) signing a client authorisation on behalf of a seller (Client) (Participation Rule 6.5.1(a)); and
• retain supporting evidence including for the above steps (Participation Rule 6.6).

In some instances, the power of attorney may not be required to be registered – for specific advice please refer to the Land Registry.

Refer to the MPR Guidance Note #1 – Client Authorisation &  ARNECC MPR Guidance Notes. for further information.

[stevenmorgan]

Thanks Morvanna, that agrees with my own inquiries with the Titles Registry and answers a question that is otherwise not immediately apparent.

• The Subscriber Representative must satisfy themselves of the capacity of the client agent to act as agent for the client under the power of attorney.
• Conduct VOI on the client agent.
• Client Authorisation to be given by the client agent.
• No requirement for the power of attorney to be registered.

Even though not a requirement, for an incoming proprietor I would also like to see some identity documents for the client (in addition to VOI of the client agent) to make sure that the names being registered are the legal name of the client.

[Morvanna]

Thanks for sharing this Steve.  I am sure other members will greatly appreciate you passing on this information so they can ensure they follow the correct processes when a POA is involved.

[stevenmorgan]

I queried the Qld Titles Office regarding this issue and in particular the inclusion of "[registered]" in item 6 of Schedule 8 of the current Queensland Participation Rules.  My conclusion from the response (of 29/6/2020) which I will paste below is that it does not need to be registered.

Email: titlesinfo@qld.gov.au

Telephone: 1300 255 750

GPO Box 1401, Brisbane QLD 4001

______________________________

              Ref: 9731163

Dear Mr Morgan

I refer to your email of 23 June 2020 seeking clarification as to the square brackets around the word ‘registered’ in item 6 of Schedule 8 of the current Queensland Participation Rules.

It is the understanding of this office that the square brackets signify that the Power of Attorney, from which the Identity Verifier must confirm the details of the Attorney and the Donor, may or may not be registered given the particular circumstances of the Conveyancing Transaction. For example, the Power of Attorney may have been registered if paper instruments executed under the same Power of Attorney have been, or may be lodged with the Queensland Titles Registry for registration.

It is also noted that the requirements for registration of a power of attorney differ between the various Australian jurisdictions. 

I hope the above information is of assistance to you.

              Regards,

Michelle Callinan Program Officer – Titles Automation Department of Natural Resources, Mines and Energy W: www.dnrme.qld.gov.au

[SarahSmith]

Hello, I have always taken the veiw that in order to "verify the authority of an attorney" that the EPA would need to be registered at Titles Office given that the attorney would only have authority to sign a Transfer if the EPA was registered at Titles Office.  A few community posts here and a number of discussions with local practioners take the view the the EPA does not need to be registered at Titles Office in order for an attorney to sign a CAF and act in a Transfer in PEXA.  

We have contacted Titles Office who have made it very clear that for an attorney to 'sign' a Transfer whether in paper or PEXA the EPA must be registered at Titles Office.

Hope this helps clarify the topic. 

[Morvanna]

Thanks @SarahSmith for the clarification on this.   I am sure there will be a lot of practitioners in QLD grateful for same as this question is regularly raised.

[KevinJohnson]

Section 132 of the Land Title Act 1994 (Qld) is notable, in that it provides:

'132 Instrument not registered until power of attorney registered

An instrument executed under the authority of a power of attorney may be registered only if the power of attorney is registered under this division.'

The word 'instrument' is defined in Sch 2 to include 'an electronic conveyancing document'.

Notably, s 132 refers to an instrument executed 'under the authority of a power of attorney' and not to 'an instrument executed by an attorney under a power'.

The former expression has a wider operation that the latter, and would include (I would think) an electronic conveyancing document digitally signed by a solicitor acting for an attorney under a power.