An overview of the changes to the witnessing requirements for Queensland Land Registry forms

24 March 2020
Kimberley Arden, Partner, Brisbane Robert Hinton, Partner, Melbourne James Roland, Partner, Sydney

The Natural Resources and Other Legislation Amendment Act 2019 (Qld) introduced additional requirements for witnessing documents including:

  • requiring the witness to take reasonable steps to verify the identity of an individual and to ensure the individual is the person entitled to sign the document;
  • requiring the witness to keep a written record of the steps they took or certain other evidence for 7 years; and
  • allowing the Registrar to ask the witness of the steps taken by the witness and to produce evidence kept by the witness (unless the witness has a reasonable excuse).

Whilst the changes came into effect from 30 September 2019, there still seems to be uncertainty about the new requirements.

Verifying identity

A witness must now verify the identity of a signatory to a land titles form. The witness can satisfy this new requirement by complying with these steps:

  1. Meet with the signatory face-to-face;
  2. Sight original, current, genuine identity documents to the value of 100 identity points (for example, a current passport and Australian driver’s licence) and take copies those documents;
  3. Determine whether there is a ‘reasonable likeness’ between the photograph on the identity document and the signatory;
  4. Have the signatory sign the land titles document in their presence; and
  5. Determine whether there is a reasonable likeness between the signature on the identity documents and on the land titles document.

If a witness is unable to complete these steps, they will need to take further steps to verify the signatory’s identity such as obtaining more identity documents and/or supporting evidence or using electronic verification services.

Additional information is available in Part 61 – Witnessing and Execution of Instruments or Documents of the Land Title Practice Manual (Queensland).

Verifying entitlement to sign

A witness must also consider a signatory’s entitlement to sign the relevant land titles form. A signatory can demonstrate their entitlement by providing the witness with evidence such as a current rates notice, valuation notice or title search (in the case of an outgoing party or mortgagor) or a contract of sale, loan document or a letter from a solicitor confirming the signatory’s entitlement to sign (in the case of an incoming party or mortgagee).

Where the signatory is signing under a Power of Attorney, the witness must sight the registered Power of Attorney (or similar evidence if the signatory is signing in another capacity such as under a delegation). The witness should also:

  1. Check the registered Power of Attorney and retain a copy;
  2. Check the donor and donee, particularly that the signatory is listed as donee and the donor is otherwise entitled to sign the form;
  3. Where the power to sign is dependent upon the signatory holding a particular position, check that the signatory holds that position; and
  4. Check that the Power of Attorney authorises the signatory to sign the relevant document.

Retaining written records

A witness is required to retain records for at least 7 years, with such records to include (at a minimum) the following:

  1. the full name of the individual;
  2. the date the witnessing occurred; and
  3. 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, or copies of those documents.

Powers of the Registrar

The Registrar may, before or after a document is registered, ask a witness to confirm the steps taken or to produce the written record or the documents retained by the witness in the course of identifying the signatory and their entitlement to sign the document. Failure to do so without reasonable excuse can incur a civil penalty.

Witnesses should remember to thoroughly check the identity of a signatory by viewing 100 points of identification and comparing the photograph and signature on identification documents to the signatory. Witnesses should also check the signatory’s authority to sign the relevant land titles form and should expect that the signatory will provide written evidence of their authority such as a title search or a contract of sale.

Witnesses should take copies of all identification documentation and other evidence provided by the signatory and retain those records for 7 years. Failure to comply with these requirements can result in civil penalties or disciplinary action.

 


Authored by:

Kimberley Arden, Partner
Tahlia O’Connor, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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