Client Authorisation
A Client Authorisation is required for each client. It is good practice to have a Client Authorisation Form completed and signed as soon as is reasonably practicable after receiving instructions from the client to act in a particular transaction.
Completion of the Client Authorisation Form must be completed before:
- any digitally signed electronic Land Registry instrument or other document is processed through the electronic workspace, and
- a subscriber is authorised to digitally sign electronic instruments and other electronic documents.
The Client Authorisation Form has four distinct sections. The information on it “is collected under statutory authority and used for the purpose of maintaining publicly searchable registers and indexes”.
Client Authorisation Form Version 6 Requirements
- Client particulars including full name and address. If the client is a corporate entity, then the company’s full registered name and ACN/ARBN must be specified. If there is any discrepancy in the name, then a supporting declaration is required to be signed by the client confirming the client is one and the same person.
- The transaction details confirming whether authority is given to the subscriber for a specific matter or for a standing period (which expires on a particular date) or a batch authority for multiple transactions. The relevant box must be marked. The property address or title description must be inserted. The form must also be marked to show the type of transaction to be undertaken whether it be a transfer, priority notice, mortgage or discharge, caveat or withdrawal of caveat or other Land Registry document. Additional instructions may be added if necessary in this section.
- Client authorisation and signing section must be read by the client/or client agent. The client certifies that they are the client, and that the client does have legal authority to instruct in the conveyancing transaction. If there is a client agent involved, then the client agent certifies that they are the client agent and have authority to act in the transaction on behalf of the client.
It also authorises the representative to act in accordance with the terms of the Client Authorisation and the Model Participation Rules and any other prescribed requirements to:
- sign documents,
- submit or authorise submission of documents for lodgement with the Land Registry,
- authorise financial settlement, and
- do all that is necessary to complete the transaction.
This section must be signed by the client and dated. If the form is being signed by a client agent, then the client agent must sign, specify the capacity in which they are signing and date it.
- Representative Details and Signing section at the foot of the form would confirm the representative’s name and address. If the representative is a corporate entity, then the company’s full name, ACN/ARBN and address is required. This section certifies that reasonable steps have been taken to ensure the Client Authorisation was signed by each client/client agent/s. The representative must sign and date the form. The representative must also confirm in what capacity they are signing this form. If a representative agent is involved, then the representative agent completes the same steps as the representative.
In the Model Participation Rules (MPR) Schedule 8 you will find the ‘Verification of Identity Standard’. As you know ARNECC ‘does not regulate or approve identity agents nor in any way assess their reputation or competence or approve the way they provide their services, including whether their services comply [with current Rules and Requirements]’.
Refer to Model Participation Rules Version 6 – clean (arnecc.gov.au).
The fact remains that subscribers and mortgagees must take reasonable steps to verify the identity of the transacting party. Verification must be conducted in a face-face in-person meeting between the identity verifier and the client. The category and minimum document requirements for Australian citizens or residents and even persons who are not Australian citizens or residents can be accessed at Verification of identity (land.vic.gov.au).
Where an Identity Agent is being engaged the Identity Agent must provide a certification in accordance with Schedule 9 of the Model Participation Rules Version 6 – clean (arnecc.gov.au).
Proper procedures should be in place for release of Title Deeds (whether paper or electronic). The Verification of Identity standard should be followed.
Execution of Registry Instruments
A reminder that in Victoria the following are authorised to sign registry instruments:
A – Australian Legal Practitioners and Law Practices
- Australian Legal Practitioner
- Australian Legal Practitioner locums and contractors
- Interstate-registered Australian Legal Practitioners
- Supervised Licensed Conveyancer employee
- Supervised non-practitioner employee
B – Licensed Conveyancers including Conveyancing Practices
- Licensed Conveyancer
- Supervised non-practitioner employee
- Licensed Conveyancer locums and contractors
- Interstate-registered Licensed Conveyancers (if granted mutual recognition)
Certifications as to Identity
Certifications as to identity are completed by the subscriber. The subscriber must take reasonable steps to verify that the client is a legal person and has the right to deal.
In PEXA the subscriber is required to certify that:
- the Settlement Statement is complete and accurate,
- reasonable steps have been taken to verify the identity of the transacting party or his/her/its administrator or legal practitioner,
- properly completed ‘Client Authorisation’ for the transaction is held,
- the registry instrument or document is correct and compliant with relevant law and any prescribed requirement,
- evidence supporting the registry instrument has been retained as evidence.
Where a Notice of Acquisition is required, the subscriber also certifies that it is correct and compliant with relevant law and any prescribed requirements.
The subscriber must retain the abovementioned supporting evidence for a minimum period of seven years. It is the subscriber who must respond to a Compliance Examination should one be called by the Registrar of Titles’ audit team.
The subscriber’s evidence should include:
- a fully completed Client Authorisation form,
- the verification of identity,
- confirmation of the right to deal and any other prescribed requirement, and
- any evidence required by the duty authority.
Evidence may be in electronic or paper format, but it must be legible. The subscriber must ensure secure storage of the evidence on which the subscriber will rely should it be required in a compliance audit or even a Court action.
Conclusion
Unfortunately, fraud within the conveyancing and mortgage profession continues and can result in insurance claims and Court actions. There are many cases available for reading through JADE relating to fraudsters in conveyancing/mortgage transactions. The latest case of C & F Nominees Mortgage Securities Ltd v Karbotli 64 VR218 is one example.
Review your risk management practices ensuring you have processes in place to minimise the risk of fraud. Ensure that you and your business are compliant with the verification standards in all transactions. It is also important to apply the verification standards when releasing title deeds from safe custody.
Joan Lentini, AIC VIC President