Landgate’s fraud mitigation practice

 

As a result of various land title frauds and attempted frauds, a new practice, the “Registrar and Commissioner of Titles Joint Practice: Verification of Identity” (Practice) has been issued which is designed to reduce the opportunity for successful land title fraud as a result of identity theft or other improper dealings.

From 2 January 2013, Landgate will require a minimum standard of verification of identity be conducted of registered proprietors and others who sign a range of real property documents that are to be lodged with Landgate. 

Who is required to be identified?

The identity of each natural person executing:

  • a transfer of land as the seller;

  • a mortgage as the mortgagor;

  • a request for or replacement Duplicate Certificate of Title as the registered proprietor and applicant;

  • a transmission application as the executor or administrator and applicant;

  • a survivorship application as the survivor and applicant; or

  • a power of attorney as donor,

in his or her own right, or on behalf of a company, incorporated body or statutory body is required to be verified.

Where a natural person is executing a document on behalf of a company or other incorporated or statutory body, the identifier must be satisfied that the entity or body currently exists (for example from a recent ASIC company search) and the natural person is a current officer and authorised to execute the document (for example from the company’s constitution or a resolution of the directors).

Ongoing or continuous business relationships exceptions

The identifier does not have to verify the identity of their client if:

  • the person is represented by the same conveyance or lawyer on an ongoing basis with respect to the sale of real property in Western Australia – in which case verification of identity is required on the first and the second transfer but not on any subsequent transfer within the next two years; and

  • where a person obtains a mortgage from the same mortgagee on an ongoing basis, against land titles in Western Australia – in which case verification of identity is required on the first and the second mortgage but not on any subsequent mortgages within the next two years.

Who is required to conduct the verification?

  • The conveyance or lawyer is responsible for verifying the identity of their client.

  • The mortgagee is responsible for verifying the identity of the mortgagor.

  • The verification of identity may be performed themselves or they may appoint an agent to do the verification of identity on their behalf.  Australia Post have a verification of identity service at certain outlets.

How is the identity verified?

The verification of identity standard has two requirements:

  • identity document production – the production of current, original identity documents; and

  • visual verification of identity – a visual "face to face" comparing the photograph on the current original identity documents with the person being identified.

Copies of identity documents (including certified copies) are not acceptable.  The Identifier should:

  • compare signatures affixed to land transaction documents with the signatures appearing on original identity documents; and

  • check that the person appears to have similar facial characteristics as those depicted in the photographs included in the original identity documents.

The Practice recommends that on completion of the verification of identity, the identifier should:

  • take a complete copy of the original identity documents;

  • complete an “Identifier’s Certificate” for each individual identified (a form is suggested in Appendix C1 of the Practice) attaching copies of the identity documents relied upon;

  • sign their name and date each copy of the identity documents stating that it is a true copy of the original; and

  • witness the execution of the relevant transaction document after the identity of the person has been verified.

What are the identity documents required?

The identifier must sight (ideally) the person’s original current:

  • Australian Passport; and

  • Driver’s Licence or Australian Proof of Age Card with photo. 

If one or more of these are unable to be produced there are other combinations of documents that are acceptable (see Appendix B, Table 1 of the Practice).

Verification outside of Australia

For documents executed outside of Australia a different standard applies.  The verification must be undertaken by an Australian Consular Officer who must also witness the execution of the document to be registered.

The identifier must sight (ideally) the person’s original current:

  • Australian or Foreign Passport;

  • Driver’s Licence or other equivalent photo identification issued by a government body; and

  • rates notice for the property issued by the local government.

If one or more of these are unable to be produced there are other combinations of documents that are acceptable to Landgate (see Appendix B, Table 2 of the Practice).

When is verification of identity to occur?

Verification of identity is to be undertaken at any time after receiving instructions and before execution of the document.  In practice verification of identity should occur immediately prior to the execution of the document so that the identifier and the witness, if a witness is required, are the same person.

What does Landgate require?

The conveyancer or lawyer acting for the party identified or the mortgagee of the party identified must lodge, together with the document for registration, a statutory declaration or a statement on letterhead addressed to the Registrar of Title (or the Commissioner of Titles as the case may be) stating:

  • the full name and address of the person identified;

  • the date and country where the person was identified;

  • list the identification documents relied upon (along with associated registration/identification numbers);

  • the full name, address, daytime telephone number and email address of the conveyancer or lawyer of the mortgagee; and

  • as appropriate, state:

    I [name of conveyancer or lawyer acting for the person being identified or name of mortgagee] have taken all reasonable steps to identify my client [full name of person being identified] in accordance with the Western Australia Registrar and Commissioner of Titles Joint Practice: Verification of Identity.

    I reasonably believe my client has the authority to deal with the interest in land the subject to this transaction [specify transaction document, land description and certificate of title volume/folio number].

Lavan Legal comment

This fraud mitigation practice is yet another step Landgate has invoked to prevent fraudulent property transactions.

These measures are not overly difficult to comply with when the identifier and the relevant person to be identified are in close proximity.  However, documents executed overseas may involve a much more complex logistical exercise.  As a result, it may be worth considering granting a power of attorney if a person is travelling overseas while a land transaction is under way.