Witnessing NSW Property Dealings

posted Nov 16, 2015, 11:17 PM by Michael Rees   [ updated Nov 16, 2015, 11:22 PM ]
Judy H sent in a useful summary about witnessing NSW property dealings received from Greg Thompson. The fact sheet mentioned in the message is available too.
From: Greg Thompson <Greg.Thompson@justice.qld.gov.au>
Date: 11 November 2015 11:51:26 am AEST

Subject: RE: JP BRANCH: POLICIES & PROCEDURES: NSW PROPERTY DEALINGS

Hello Judes,

As discussed, if the document is a lender's document (e.g., Westpac) relating to the terms and conditions of the loan, then the witness is only witnessing the client(s) acceptance of same.

In this respect, standard witnessing procedure should be followed in requesting the client to provide proof if identity, unless the lender's document specifically requires some additional action(s) by the witness.    

However, if the document is a NSW Land and Property Information (the LPI) "dealing" form; e.g., a  Form 01T Transfer or Form 05M Mortgage (the equivalent of QLD Form 1 Transfer and From 2 Mortgage), then the witness does have statutory obligations under s.117 of the (NSW) Real Property Act 1900 (the Act), which states:

117 Certificate of correctness

(1) The Registrar-General may reject, or may refuse to accept or to take any action in relation to, any primary application, dealing or caveat unless it bears the following certificates:

(a) a certificate (signed by or on behalf of each person by whom the application, dealing or caveat has been executed) to the effect that the application, dealing or caveat is correct for the purposes of this Act, and

(b) a certificate (signed by each witness to the execution of the application, dealing or caveat) to the effect that:

(i) the witness is personally acquainted with, or is otherwise satisfied as to the identity of, the person to whose execution of the application, dealing or caveat the witness is attesting, and

(ii) the execution by that person of the application, dealing or caveat took place in the presence of the witness.

In addition, s.36 of the Act states:

36 Lodgment and registration of documents

(1D) Without affecting the generality of subsection (1C), the Registrar-General may refuse to accept a dealing or caveat presented for lodgment:

(a) that does not recite the distinctive reference allotted under this Act to the folio of the Register or to the registered dealing intended to be affected by the dealing or caveat,

(b) unless the regulations otherwise provide, that is not attested by a witness who is not a party to the dealing or caveat, or

(c) that is not lodged in a manner approved for the time being by the Registrar-General.

With respect to 36(1D)(a), a witness would reasonably expect the real property description to appear in the relevant section of the dealing form.

To assist, I have attached a copy of the LPI Fact Sheet Witnessing Real Property Act Dealings: witness obligations, which provides the following advices as to who is an eligible witness to an LPI dealing form:

An eligible witness must be someone who:

·         is over 18 years of age and

·         is not a party to the transaction and

·         has known the person who is signing the dealing as a party to the transaction for at least a year or

·         has taken reasonable steps to confirm the identity of that person.

These requirements appear to be based on subsections of both s.36 and s.117 of the Act, though neither section stipulates the age of the witness.

It is interesting to note that the Act is silent on the witness having to take any steps to satisfy themselves as to the entitlement of the individual to execute the dealing form (i.e., their connection to the property, as is required under s.162 of the Qld Land Title Act 1994).

Hope this helps.

Regards & best wishes, Greg.

 

Greg Thompson
Community Engagement Officer
Justices of the Peace Branch
Department of Justice and Attorney-General