National electronic conveyancing: Western Australian developments

In April 2014 the WA Parliament passed the Electronic Conveyancing Act 2014 (the EC Act) some four years after the Property Exchange Australia Limited (originally known as National e-Conveyancing Development Limited) was formed.

Background

The passing of the EC Act in Western Australia brings Australia another step closer to fulfilling a Council of Australian Governments agenda item under the National Partnership Agreement to Deliver a Seamless National Economy to develop and deliver a National Electronic Conveyancing System (NECS).

Every Australian State and the Northern Territory signed the Intergovernmental Agreement for an Electronic Conveyancing National Law committing to adopt a model law for NECS or to implement legislation corresponding to the model law.  The national law is intended to be the same in each jurisdiction although it does allow some wriggle room among jurisdictions.

Western Australia joins Victoria, New South Wales and Queensland in passing their respective model laws with the remaining States and the Northern Territory set to either adopt the Electronic Conveyancing National Law or enact corresponding legislation in 2015.

The platform for NEC

Property Exchange Australia (PEXA) is a purpose built system that supports the exchange of property through the ability to perform lodgements and property settlements online.  PEXA does not replace Landgate; instead its task is to provide an electronic workspace within which participants can interact with Landgate and each other in order to complete property transactions.

PEXA will allow all of the following to occur in an electronic environment:

  • Digital signing of documents on behalf of the client – a lawyer or conveyancer is required to digitally sign and to release monies on behalf of their client.  The client will be required to sign a client authorisation form at the start of the transaction which can be for a single transaction, a batch of transactions or an indefinite general authority.
  • Verification of identity – a lawyer will be required to take reasonable steps to verify the identity of their client.
  • Settling monies electronically – PEXA will enable the financial settlement of electronic conveyancing transactions.  Settlement monies can be disbursed to the client account from PEXA immediately at settlement.
  • The lodgement of land title instruments for registration. 

Roll out and key dates for Western Australia

PEXA Release 1 is currently live in Victoria, New South Wales, Queensland and Western Australia for new mortgages, mortgage discharges and refinances. The major banks as well as a number of additional financial institutions are currently using PEXA to perform these transactions.

Release 2 launched in June 2014 in a limited capacity (caveats only) for property lawyers and conveyancers in Victoria.

On 10 November 2014, select property lawyers and conveyancers in metropolitan Sydney and Wollongong were the first to gain access to PEXA’s new functionality. This will be followed by a similar sample in metropolitan Melbourne, Geelong and Bendigo in December.  The broader New South Wales and Victorian market will be invited to begin transacting on PEXA from February 2015 followed by the remaining states.

Western Australian legal practitioners (including in-house counsel) and conveyancers will be able to register to become a subscriber of PEXA in February 2015 with the ability to begin transacting occurring from May 2015.

With the release of full functionality, PEXA enables banks and other financial institutions as well as lawyers and conveyancers to perform lodgements and financial settlements online.

Lavan Legal comment

Lavan Legal has been invited to subscribe to PEXA, and aims to make available electronic settlement services to our clients by the middle of 2015.  We will also continue servicing settlements utilising hard-copy documents for as long as Landgate accepts hard-copy documents. 

Although the NECS will not be available until May 2015, particularly given the upcoming Christmas break, participants expecting to enter into property projects in the New Year, may wish to consider how NECS may impact their documentation and settlement timetables.  Lavan Legal will be pleased to assist and advise you in this regard, as required.

Despite Landgate fees and costs generally not being affected by the transition to electronic settlements, we expect that there may be cost and time efficiencies in attending to settlements under the NECS.