03 Oct 2019

New witnessing requirements for Queensland land registry documents

By Michael Richardson, Cathy Cameron

New witnessing requirements will affect signatories and witnesses in Queensland.

Additional requirements were introduced on 30 September for witnessing documents that are to be registered in the Queensland Land Registry. The changes will affect both signatories and witnesses to these documents.

The amendments to the Qld Land Titles Act (section 162) and Land Act (section 311) now require anyone who witnesses the signature of an individual to:

  • take reasonable steps to verify the identity of the signatory;
  • take reasonable steps to ensure the individual is entitled to sign the document; and
  • retain records for a period of 7 years, namely:
    • a written record of the steps taken to verify the identity of the individual and their entitlement to sign the document; or
    • originals or copies of the documents and other evidence obtained during the process of verification.

How the changes affect signatories

If you are signing a Qld Land Registry document as an individual (including as Attorney for a company or under some other authority such as a delegation), the witness will ask you to produce evidence that verifies your identity at the time the document is executed. This is effectively the same process as the Verification of Identity (VOI) procedure used for electronic conveyancing. Your original current driver's licence plus a current passport are the primary identification documents and should meet the requirement provided there have been no name or other changes since the documents were issued.

If those documents are not available a combination of other forms of identification can be produced (these are listed in the new Part 61 of the Land Titles Practice Manual paragraph [61-2700]). If a Clayton Utz lawyer is the witness, we will use the same process that we already have in place for VOIs for electronic conveyancing, which is to:

  • take a copy of your original identity documents;
  • ask for a specimen signature; and
  • take a photograph of you,

all of which will be stored securely in our VOI Register.

If we have verified your identity in the previous 2 years, we may not need to do it again but we will need to check the previous VOI Record, which is the standard practice for electronic conveyancing. We consider that checking a current VOI we hold and confirming it relates to you meets the reasonable steps requirement.

In addition to verifying your identity, the witness will need you to provide evidence that that you are the person entitled to sign the document. For example if you are selling a property, a current rate or valuation notice addressed to you (or the party you are signing on behalf of) and identifying the property would satisfy this requirement. A current title search might also satisfy the requirement. You will need to have these with you at the time the document is witnessed.

If you are signing under a Power of Attorney you should also produce the registered Power of Attorney so that the witness can confirm you have the power to sign the document in question. Similar evidence will be required if are signing a document in another capacity such as under a delegation.

The witness is required to retain written evidence of the steps taken to identify you and your entitlement to sign the document for 7 years. They may choose to either retain copies of original documents sighted or a written record of the steps taken. If a Clayton Utz lawyer witnesses your signature, they will retain copies of your identity documents for VOI purposes, and a record of the other documents sighted to confirm your entitlement to sign. As noted above we store copies of any identity documents in a secure register.

How the changes affect witnesses

All witnesses, including solicitors, in-house counsel, JPs or other qualified witnesses now have additional obligations when witnessing the signature of an individual on any document to be registered in the Queensland Land Registry.

The VOI, entitlement to sign and record keeping obligations are outlined above. The Registrar may, before or after a document is registered, ask you to confirm the steps taken or to produce the written record or the documents retained by you in the course of identifying the signatory and their entitlement to sign the document (Land Title Act section 162(4) and Land Act section 311(4). Failure to do so without reasonable excuse incurs a penalty.

The Land Titles Practice Manual has been updated to include a new Part 61 dealing with witnessing and execution of documents. It provides extensive guidance on these new obligations.

Identifying the signatory

The Practice Manual provides that a witness takes reasonable steps to verify the identity of the signatory if they use the Verification of Identity Standard outlined in paragraph [61-2700] of the Manual. This involves:

  • conducting a face to face, in person interview where the signatory supplies original identity documents from the list outlined in the Standard;
  • examining the identity documents and ensuring they are original (not copies), current, and appear to be genuine. (An Australian passport that has expired within the last 2 years and has not been cancelled is acceptable).
  • retaining copies of all documents produced (but see below regarding record keeping by JPs).

Further steps should be taken if an identity document does not appear to be genuine, if a photograph is not a reasonable likeness, the signatures are not consistent or the individual does not seem to be the person to which the identity documents relate. A change of name or marriage certificate must also be produced if applicable.

Other steps such as referring to a previous VOI the witness had conducted, or personal knowledge of the signatory may be regarded as reasonable in the circumstances, but that would be a matter for the witness, and must be recorded as part of the record keeping obligation. Neither the legislation nor the Practice Manual mention the existing e-conveyancing practice of being able to rely on a previous VOI for a period of 2 years. However we are of the view that this should constitute reasonable steps provided the previous VOI is examined, the witness can confirm it relates to the signatory and the details are recorded when witnessing the document.

Entitlement to sign

You need to sight sufficient supporting evidence to show the signatory, or the party they are signing on behalf of, is (or is about to become) the registered proprietor of the relevant interest in the land. For a seller this could include a rate notice, title search, valuation notice or land tax assessment, all of which must be current and note the name of the signatory (or the entity on whose behalf they are signing) as owner. For a buyer signing a mortgage this may require the witness to sight the contract of sale. Further examples are provided in the Land Titles Practice Manual paragraph [61-2320].

If you are witnessing a document signed by an individual under a Power of Attorney, you will need to:

  • Check the registered Power of Attorney and record the registration number.
  • Check the donor and donee and confirm the donor is entitled to the interest in land and the signatory is named as a donee.
  • Where the power to sign is dependent on the position held by the signatory you will need to also confirm the signatory holds that position (for example checking a company search to confirm the signatory is a director).
  • Confirm the Power of Attorney authorises the signatory to execute the document.

Similarly, if the signatory is appointed under some other authority such as a delegation, you need to take reasonable steps to confirm that the delegation or authority extends to executing the relevant document (eg. sighting the documents creating the authority) and that the person holds any relevant position.

Record-keeping

This new requirement to keep records of the steps taken by the witness to verify the signatory's identity and ensure their entitlement to sign the document is quite onerous. Every time you witness a Land Registry document, you must create a record and ensure it is retained for 7 years. There is no mention in the legislation or the Land Titles Practice Manual of any specific method of storage. The Land Titles Practice Manual suggests that a written record should include as a minimum:

  • the full name of the individual
  • the date the witnessing occurred
  • a description of the steps taken to verify the individual's identity and their entitlement to sign e.g. a description of the identity documents and other evidence sighted by the witness.

However, the legislation provides that you can either record the steps taken to verify the identity of the signatory and their entitlement to sign, or keep copies of the documents produced. One of the issues with retaining copies of identity documents is the risk of identity theft. That is one of the reasons we ensure that copies of identity documents are stored securely. JPs should refer to the Department of Justice & Attorney General website and paragraph [61-2330] of the Land Titles Practice Manual for further guidance on the records requirement as it relates to their specific circumstances.

Summary of requirements and example documentation

Image showing Summary of requirements and example documentation

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.