Shift of risk by e-dealing a myth

Robbie Muir, Registrar-General of Land, LawTalk (Vol 677, 30 October 2006)

This article outlines why there is no difference from a liability and responsibility perspective between a paper dealing and an e-dealing.

The paper process

Under the existing "paper" system, Land Information New Zealand (LINZ) enters the information set out on the document provided by the solicitor. LINZ checks to ensure the document is correctly signed, dated and witnessed, that the title number is correct and that it is signed "correct".

Accountability rests with the solicitor who drafted and/or signed it "correct" for the purposes of the Land Transfer Act and the Registrar relies on the certificate of correctness as to matters not readily apparent on the face of the instrument. Certification is to assure the Registrar the instrument in bona fide, is given personally by the solicitor and cannot be given in the name of a law firm.

E-dealing process

Under the soon-to-be-implemented e-dealing process, LINZ still checks the same fundamental facets of the instrument, but does so automatically. The "pre-validate" option runs the same checks prior to submission and a dealing can still be rejected.

LINZ attends to the actual registration aspect that alters the title, and the Registrar still monitors and sets the background rules as to what can be registered. The solicitor "submits" and the Registrar "registers".

Certification

The certification process required for e-dealing instruments are effectively a codification of signing "correct". Certification must specify:

• the person giving the certification has authority to act for the party specified in relation to that class of instrument;
  
  
• the person giving the certification has taken reasonable steps to confirm the identity of the person who gave the authority to act;
  
  
• the instrument complies with statutory requirements; and
  
  
• the person giving the certification has evidence showing the truth of the earlier certifications.

 

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