Executing NSW paper land dealings and instruments during the COVID-19 pandemic

Restrictions imposed in response to COVID-19 have made it difficult to prepare, sign and witness paper land dealings. All land dealings involve a combination of steps, including:

• verification of identity,
• establishing the right to deal; and
• signing, witnessing and attestation.

In order to maintain business as usual and complete these steps for paper dealings given the current COVID-19 environment, altered execution and certification requirements for paper documents have been released commencing from April 27, 2020. This will cease to apply on 23 October 2020, or on an earlier date as may be determined by Parliament.

So, what elements have been altered?

Step 1: Verification of Identity

Under the Conveyancing Rules a representative (being a legal practitioner, law practice or licenced conveyancer) must take reasonable steps to verify the identity of any client who has given instructions to prepare or lodge a land document. To do this, the representative can either:

• apply the Verification of Identity Standard or
• verify the identity of the person in some other way that constitutes the taking of reasonable steps.

The Verification of Identity Standard requires a face-to-face in person interview to be performed, but this is not the only way that a person’s identity can be verified. A representative can verify the identity of their client in a way that constitutes reasonable steps. It is a matter for the representative to determine what constitutes reasonable steps specific to the circumstances.

In the current COVID-19 environment, representatives might consider using audio visual technology as part of the verification of identity process. As always, a representative can choose to use an Identity Agent to carry out the verification process on their behalf.

InfoTrack offers a verification of identity solution that constitutes reasonable steps given the possibility for face to face meetings is reduced. Keep yourself and your clients safe and verify remotely using InfoTrackID. InfoTrackID features four layers of identity verification smarts which are a first for the Australian legal industry. These layers of verification all work together to reduce identity fraud whilst adhering to social distancing guidelines and keeping clients safe.

4 layers of innovative technology verifying your client’s identity

1. Document Verification Service (DVS): Eligible identity documents are sent to the national verification service which compares them to Australian Government records to confirm the details are valid.
2. Facial recognition: Facial recognition technology detects facial patterns and matches images regardless of angle, posture, lighting, facial hair of whether the user is wearing glasses.
3. Optical Character Recognition (OCR): Text is extracted from images and auto-populates the data into our InfoTrackID platform to ensure identifying information is recorded accurately and quickly. This means no manual data entry saving you time and reducing the possibility of human error.
4. Video verification: The newest InfoTrackID feature and an Australian legal profession first, video verification allows your clients to video themselves speaking a randomly generated code. It serves as an extra layer of verification increasing your confidence that your clients really are who they say they are.

Since February, InfoTrack has seen 83% growth in InfoTrackID usage. Amanda Spencer from Bridge Legal, an InfoTrack client, said “Once our staff knew InfoTrackID was compliant with ARNECC recommendations they were very keen to use it and now it’s as if it is something that we have used all the time. Our clients are time poor and many can’t readily get to a post office, given the current environment. Using InfoTrackID was a relief that we could get through the verification of identity process quickly and efficiently, whilst putting our clients at ease.”

Step 2: Right to deal

The Conveyancing Rules require a representative (being a legal practitioner, law practice or licenced conveyancer) to take reasonable steps to verify the right of any client who gives instructions to enter into each conveyancing transaction. Execution Paper land dealings must be signed and witnessed. Conveyancing Rule 6.1 requires that the witness:

• be an eligible witness, who
• certifies that the dealing was signed by the signer in the presence of the witness.

To be eligible, the witness must:

• be at least 18 years old;
• not be a party to the dealing; and
• have known the signer for more than 12 months or taken reasonable steps to ensure the identity of the signer.

The requirement for witnessing has meant that traditional land dealings could not be signed electronically under the Electronic Transactions Act 2000. An amendment to Version 5 of the Conveyancing Rules, known as the Conveyancing Rules – (COVID-19 Pandemic) Amendment, has temporarily removed that prohibition. The effect of this amendment, together with the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (COVID-19 Witnessing Regulation) means that during the COVID-19 pandemic, land dealings can be:

• signed electronically, and
• witnessed by audio visual link.

Step 3: Electronic signing

While the requirement for signing has not changed, Schedule 1 to the Conveyancing Rules gives more options for how a signature can be applied. Land instruments can continue to be wet-signed or signed under an authority, like a power of attorney. During the COVID-19 pandemic, instruments can also be signed by a party affixing their electronic signature. A witness can also affix their signature by electronic means. To be valid, electronic signatures must comply with the requirements of Division 2 of Part 2 of the Electronic Transactions Act 2000 (ET Act).

An electronic signature will be taken to have met the requirements for a signature if it satisfies the requirements for:

1. Identity - a method is used to identify the person and to indicate the person’s intention in respect of the information communicated, and
2. Reliability - the method used must be as reliable as appropriate for the purpose, and
3. Consent - the parties must agree to the use of electronic signatures and to the method used (for further detail see s 9 ET Act).

To identify the signer and indicate their intention, a land instrument that has been signed electronically must include, near or above the electronic signature, words to the effect of:

Electronic signature of me, [..insert name..] affixed by me, or at my direction, on [..insert date..]

These words do not need to be included if a digital signing platform has been used that indicates that an electronic signature has been applied and the time and date when this occurred. Before agreeing to accept an electronic signature, the parties should consider whether the method used is reliable and sufficient to ensure that the correct person is signing the document.

InfoTrack’s e-signing solution, SignIT allows you to upload any document and send it to relevant parties via a secure email link. Parties can then review and sign the document online from any location. Lawyers can track who has signed the document on the SignIT dashboard and once all parties have executed, everyone receives a final signed copy. SignIT tracks documents and their required electronic signatures using DocuSign’s audit trail report. This offers time and date stamping so you know who signed the document and when. Since February, usage of SignIT has increased 130%, demonstrating how electronic signatures have become accepted and adopted in many firms in order to continue business as usual.

During these uncertain times, it is comforting to know that legislative bodies are assisting lawyers and conveyancers to continue business as usual by providing options to avoid unsafe face to face practices. InfoTrack’s suite of cloud-based products have been built for lawyers to use anywhere at anytime and our technologies have been tried and tested long before the COVID-19 pandemic.

Business doesn’t have to stop simply because face to face meetings stop. As many of us now work remotely, this is the perfect opportunity to embrace technology and stay ahead of your competitors. InfoTrack’s Transition to E-conveyancing COVID-19 Care Package aims to expediate the adoption of essential technology as a business continuity plan in these challenging times. Using technology to keep your matters moving forward can prove an effective business strategy that can serve your firm well in the future.