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Sighting Documents

AICWA has sought legal advice and made an additional submission to the Registrar and Commissioner of Titles for the ability of Licensed Settlement Agents to sight original documents required as evidence to support dealings lodged at Landgate.

In many cases, the requirement for only Landgate and Australia Post to sight documents is impractical and can also be at a significant cost and inconvenience to the public.  Many members of the public will feel much more confident being able to take their original documents home with them when they leave their settlement agent’s office, knowing that the document has been sighted in their presence.

It is also important to note that there have been many instances where settlement agents (particularly regional ones) have experienced problems having documents sighted at Australia Post.  Incidents have been reported where staff have not been willing to certify original Probate documents, as only a copy of the will is annexed (standard practice by the Supreme Court) and in other cases, the incorrect or incomplete stamp has been used by postal staff resulting in significant inconvenience to the settlement agent and their client.  Members have also experienced Australia Post staff willingly sighting photocopies of documents, without sighting the original.

The AICWA strongly believe that Licensed Settlement Agents should also be permitted to carry out this function.  We have obtained the attached legal advice from MGB Legal for your consideration.  The advice not only supports our belief that this is a function that a settlement agent can perform, but further goes on to suggest that this function is consistent with the existing functions carried out by settlement agents under the Settlement Agents Act and the Electronic Transactions Act.

We propose a system whereby, in addition to Landgate & Australia Post, a Licensed Settlement Agent or Solicitor is permitted to sight documents that directly relate to a transaction in which they have been appointed to act on.  In doing so, the settlement agent or solicitor must state on the copy “I certify this to be a true copy of the Original Document presented to me today”.  Underneath this statement, they would be required to sign, state their full name and Settlement Agent licence number or Solicitor registration number.

By limiting this ability to Licensed Settlement Agents & Solicitors only, who would be required to provide their license number, we feel that this would give confidence to Landgate and further enable Landgate to conduct spot checks, if they feel it is required, to ensure that only the appropriate persons are undertaking this function.

In endorsing settlement agents to complete this function, the functions of a settlement agent in WA would be more closely aligned to that of our interstate colleagues.  Furthermore, we believe that this change will lead to greater continuity and efficiency for Landgate, settlement agents and the general public who are transacting their properties.

We believe that this change will lead to greater consistency with the requirements for electronic settlements, whereby practitioners are required to justify parties’ name changes and hold the relevant evidence on file.  As the scope of eligible transactions is expanded in the future, to include many additional transaction types that require supporting evidence, enabling settlement agents to sight this evidence will minimise any inconvenience and cost for the consumer and foster smooth uptake.

Currently, many practitioners believe that it is still best practice to maintain dual processes, as there may be instances where an electronic transaction reverts to paper late in the process.  Being able to rely on evidence certified by the settlement agent or solicitor will ensure that industry and consumers are not adversely impacted by any transition to a paper settlement.

 

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