Unpacking the puzzle of PEXA lodgements

With the abolition of paper certificates of title, NSW Land Registry Services (LRS) moved to a system which requires all documents to be lodged electronically via PEXA.

Below we discuss the requirements for different forms of documents which need to be complied with in order to ensure the documents are in registrable form and to avoid costly requisitions being issued by LRS.

Residual documents

Any documents that are not mainstream documents (e.g. Transfer, Mortgage, etc.) are classified as residual documents. Examples of residual documents include positive covenants, cancellation of easements, transfers granting easement, releases of restriction on the use of land and many more.

Residual documents are usually completed using electronic forms on PEXA. However, certain dealing types also require a copy of the fully executed and dated LRS dealings to be uploaded. These can be uploaded as either supporting evidence or terms and conditions, if these are required by LRS to be separately annexed to the electronic form on PEXA.

Dealings with exception and miscellaneous documents

Certain documents or some residual documents can only be lodged as dealings with exception or miscellaneous documents, in which case the fully executed and dated dealings must be uploaded to PEXA at all times.

Examples of dealings with exception or miscellaneous documents include:

• 11R Request forms

• any documents that deal with manual titles

• any documents that involve more than 20 land titles in a single dealing/transaction.

A correctly completed Lodgment Rules Exception form must accompany a dealing with exception and/or miscellaneous dealing. The form must satisfy one of the exception items.

Where at least one dealing in a matter is required to be lodged as a dealing with exception, all dealings in the matter must be lodged as dealings with exception. For example – if you are lodging a Transfer Including Easement, any discharging mortgagee will need to upload a paper discharge of mortgage together its own Lodgement Rules Exception Form.

Some tips to ensure LRS dealings are executed/completed correctly

• The authority under which the authorised officer executes dealings must be stated

• Dealings must always be dated upon full execution

• Page numberings must be inserted on every page.

Consent

A CoRD Holder Consent was an electronic document lodged through PEXA, to provide consent to the registration of registry instruments and plans. It was the electronic equivalent of making the certificate of title available for a transaction.

The abolition of CoRD Holder consents on 11 October 2021 does not change the requirement for third parties to provide their consent where required by the Registrar General for the registration of certain dealings. Of course, these consents are not new and have always applied, even when CoRD Holder consents existed. The changes just mean that the consenting party is no longer required to be a party to the PEXA workspace and need only provide a written consent (which is to be lodged as supporting evidence with the dealing).

The following are examples where consent is required for registration of a dealing under the Real Property Act 1900:

1. Release of a positive covenant – the consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable.

2. Transfer releasing easement – the consent of any lessee, mortgagee or chargee against whom the easement is enforceable.

For some dealings, consent may not be required for registration but it is still required to bind parties to the terms of the relevant legal document. For example, a lease may require the consent of the mortgagee if the mortgagee agrees to be bound by the terms of the lease.

LRS forms + electronic execution

Conveyancing Rules – (COVID-19 Pandemic) Amendment (Version 2) came into effect on 21 December 2021. This amendment to the Conveyancing Rules is made under s12E(1) and (3) of the Real Property Act 1900. Rule 12.3 of confirms that the client is no longer required to wet sign a dealing for lodgement with LRS. Electronic documents are signed using a digital signature by the practitioner representing the client or by a party representing themselves (such as a financial institution). Legally this is the same as if an equivalent paper document had been signed.

Rule 12.4 states a person who signs electronically under Rule 12.3 must confirm their identity and their intention to sign the instrument electronically by either:

1. including a statement on the instrument near or above their electronic signature to the following effect: Electronic signature of me, [insert full name], affixed by me, or at my direction, on [insert date], OR

2. using a digital signing platform (such as DocuSign) that indicates on the instrument that an electronic signature was applied, and the date and time that this occurred.

Conclusion

It is important to ensure that documents are executed and lodged correctly via PEXA in order to effect timely registration and avoid the costs and delays of LRS issuing requisitions. We have a dedicated property team which can assist you with the preparation, execution and lodgement of documents via PEXA.

If you have any questions regarding this article please contact Andrew Grima.

Author: Irene Horan