The transition to electronic conveyancing (eConveyancing) has a been a long time coming, with legislation first passed by the NSW Parliament to facilitate the process in 2012.[1] A transition timetable was introduced in 2017 by the NSW Government following its announcement that the transition into eConveyancing would be accelerated in 2016. With version 5 of the Conveyancing Rules (Rules) which became effective on 1 July 2019, a major milestone in the government’s mandated timeline has been reached.

Subject to some minor exceptions, the Rules now mandate that all Mainstream Dealings or combination of Mainstream Dealings signed between 1 July 2019 and 30 June 2020 must after 1 July 2019 be lodged electronically (except where accompanied by another dealing which is not a Mainstream Dealing) be it standalone, or in combination of Mainstream Dealings. Unless a waiver or exemption applies, they include:

  1. Transfers;
  2. Mortgages;
  3. Discharges of Mortgages;
  4. Caveats;
  5. Withdrawals of caveat; and
  6. Transmission applications.

To find out more about whether a particular dealing is eligible to be lodged electronically, please see the Registrar’s General’s Guidelines or call us.

Waivers & Exemptions

From time to time, the Registrar General (Registrar) may waive compliance with all or any provisions of the Rules in accordance with section 12E of the Real Property Act 1900 (NSW). The Registrar has issued a variety of waivers that include the following where:[2]

  1. an unrepresented party is lodging a caveat or withdrawal of caveat; the caveat requires a plan or affects only part of a lot or affects a leasehold or other registered interest; there are multiple caveators and they are separately represented; or the written consent of the caveator is required;
  2. an unrepresented mortgagee (an individual) is registering a mortgage or a discharge of mortgage;
  3. both the transferee and transferor are unrepresented; the parties wish to register a standalone transfer which will create a life estate and estate in remainder; where the transfer has an attachment or creates an easement; or not all registered owners are affected;
  4. an unrepresented applicant wishes to lodge a transmission application or the transmission application affects an interest in land is, rather than the freehold;
  5. the transaction involves a transfer of a water access licence; or
  6. written evidence from the OSR or an ELNO saying that the transaction cannot be processed electronically is presented to NSWLRS with the paper dealings.

For more detail about the Registrar’s waivers and exemptions, please see the Conveyancing Rules Waivers published by the Registrar or call us.

Beyond 1 July 2019

Moving forward, the Registrar will gradually remove various waivers and exceptions. Marking the end of the transition into eConveyancing, rule 8.8 of the Rules mandates that all dealings that are available electronically, must be lodged electronically from 1 July 2020. The detail on this will be released next year and we will update clients on this blog when the information becomes available.

Action required

There is additional work and time required to assess whether transactions can be processed manually or electronically and, if electronically, to set up workspaces and engage with the other parties to the transaction electronically. Please call us early on to discuss your transaction and we can assess how it should proceed.

Footnotes:

[1] Electronic Conveyancing (Adoption of National Law) Act 2012
[2] https://www.registrargeneral.nsw.gov.au/__data/assets/pdf_file/0007/526732/Conveyancing-Rules-Waiver-CR-2-2019-Mainstream-dealing-exceptions.pdf

Nicholas Cowie
Nicholas Cowie
Partner, Sydney
+61 2 9225 5551
Chrislynn Soong
Chrislynn Soong
Solicitor, Sydney
+61 2 9322 4678