From 30 September 2019 there are new and additional requirements in relation to witnessing requirements for documents to be registered in the Queensland Land Registry.
The changes will affect both signatories and witnesses to these documents.
The amendments to the Queensland 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 Queensland Land Registry document as an individual, the witness will ask you to produce evidence to verify your identity at the time the document is signed.
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]).
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 and identifying the property would meet this requirement. A current title search might also satisfy the requirement. You will need to have these documents 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.
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.
How the changes affect witnesses
All witnesses, including solicitors, Justices of the Peace 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 verification of identity, entitlement to sign and record keeping obligations are outlined above. The Registrar may, before or after a document is registered, ask the witness to confirm the steps taken or to produce the written record or the documents retained in the course of identifying the signatory and their entitlement to sign the. 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.
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 the names on the identification documents differ.
Entitlement to sign
The witness needs to sight sufficient evidence to show that 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. For a buyer signing a mortgage this may require the witness to sight the contract of sale.
If you are witnessing a document signed by an individual under a Power of Attorney, you will also 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.
The 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. The 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.
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.
These changes reflect a much stricter and more careful approach to the witnessing of Land Titles documents. The changes highlight the significance and gravity of transactions in land, which often involve substantial amounts of money.
Delaney & Delaney Solicitors have an established history of over one hundred years acting for clients in property transactions. Our current team of skilled and capable property lawyers are available to assist you in any property transaction. Delaney & Delaney Solicitors will ensure that all copies of identity documents are stored securely to prevent any unlawful access or the risk of identity theft.