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Effective from 27 April 2020, the New South Wales Government has implemented temporary changes to the NSW Conveyancing Rules to allow paper land dealings and certain conveyancing instruments to be electronically witnessed and signed.

Electronic Signing

The changes to the requirements are effected via the new ‘Schedule 1 – Altered execution and certification requirements for paper documents in response to COVID-19 pandemic’ (“Schedule 1“) of version 5 of the NSW Conveyancing Rules, which is intended to remain in place until 23 October 2020.

As a result, the Electronic Transactions Act 2000 (NSW) (“ETA“) now applies to the signing of:

  • any instrument that is to be lodged for registration under the Real Property Act 1900 (NSW)
  • a certificate referred to in Rule 6.1.2 (a) and (b) of the NSW Conveyancing Rules
  • an instrument under section 88B of the Conveyancing Act 1919 (NSW)
  • any other instrument that is to be lodged for registration with a plan.

This means that documents including leases, mortgages, discharges of mortgage, caveats, transfers, and easements can now be validly electronically signed provided that the requirements of the ETA and NSW Conveyancing Rules are met.

Any person who wishes to electronically sign must confirm their identity and their intention to sign the instrument electronically, with the method used being either –

  1. the most reliable method as appropriate, in the light of all the circumstances; or
  2. proven in fact to have fulfilled the identification and intention requirements by itself or together with further evidence.

In addition, the party to whom the signature is required to be given must also consent to the method of confirming identification and intention.

Schedule 1 of the NSW Conveyancing Rules is more specific, and provides that any person who signs electronically must confirm their identity and their intention to sign the instrument electronically by either:

  1. including a statement on the instrument near or above their electronic signature to the following effect: “Electronic signature of me, [insert full name], affixed by me, or at my direction, on [insert date]”; or
  2. using a digital signing platform that indicates on the instrument that an electronic signature was applied, and the date and time that this occurred.

Docusign is a commonly used platform for this purpose.

A copy of any document signed electronically in accordance with Schedule 1 may be lodged as an original of that document.

Electronic Witnessing

The above paper land dealing documents and conveyancing instruments may now also be electronically witnessed in accordance with the requirements of Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“ETA Regulation“) which commenced on 22 April 2020.

These changes as well as the details relating to the enactment of the ETA Regulation were discussed in our previous article, which can be found here.

 

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