The Demise of Paper Certificates of Title and the Future of E-Conveyancing
1 September, 2014Property Law, Development & Conveyancing
With the introduction of Torrens title system, indefeasibility of title to property is established through the act of registration on the Title Registry (s37 of the Land Title Act 1994 (Qld) (“LTA”)). As such, title is no longer established by tracing the chain of previous title holders.
The introduction of an automated titling system occurred in 1994 with the enactment of the LTA, implementing a paperless system and computerisation of the Title Registry.
Under the current system, upon registration of a dealing with a lot, a new paper title does not issue unless the registered owner makes a request for such in writing. If the lot is subject to a registered mortgage, the Registrar may issue the Certificate of Title only if the mortgagee consents.
Where a Certificate of Title has issued, any dealing with the lot will only be registered if the Certificate of Title is returned for cancellation. It is the Register itself and the information contained therein, that establishes indefeasibility of title. Therefore, the fact that a paper Certificate of Title no longer exists, does not impact on a registered proprietor’s indefeasibility of title.
This electronic title system complements the concept of indefeasibility through the registration process. This registration process is much faster and more efficient, ensuring the efficient protection of the proprietary interest in the lot. Also, the use of computers and the electronic registry ensures that information is readily accessible, more current and more certain so that due diligence and the conveyancing process can be conducted with more certainty.
One of the concerns raised in relation to electronic lodgement is the possibility of the increase in fraud. This has been combatted by certain implementations under the LTA, including provisions allowing for a purchaser’s interest to be placed on the Register (with a Settlement Notice) between settlement and lodgement of title for registration. The lodgement of such a notice halts the registration process (should there be any other potential registrations) and provides notice of the purchaser’s interest (in a similar way to a caveat) and preserves the lodger’s priority within the queue for registration.
The final stages of changes regarding an automated Land Title system (under the Electronic Conveyancing National Law (Queensland) Bill 2012 are scheduled to come into place in 2015 and will allow most dealings to be lodged electronically, including transfers, notices and caveats. This will see the removal of most manual processes and the paperwork associated with dealings with property. However, it should be noted that the use of this electronic system will be voluntary and the Bill does not repeal the use of paper form lodgement through the Land Registry.
The anticipated benefits of this automatic system include the following:
1. cost benefits- including lower settlement fees and the elimination of the time and cost of arranging manual settlements;
2. greater transparency- more certainty for practitioners in relation to the status of all documents involved with the transaction;
3. greater efficiency and time saving- more certainty as transaction information can be checked and verified for completeness and compliance.
In conclusion, this new system of moving from a paper system to an online system will not amend any legal principles in relation to property transactions. The fundamental principles of the Torrens system will remain unchanged. However, day to day conveyancing practice will change with the implementation of the system.