20 February 2023 marked the official move to e-conveyancing in Queensland. This move brings several changes to the standard form Real Estate Institute of Queensland contracts (REIQ contracts).
In this article, Real Estate associate Matt Dolan touches on the changes to the REIQ contracts and the exemptions to the e-conveyancing mandate.
The Land Title Regulation commenced on 20 February 2023 and mandates e-conveyancing for certain documents, such as transfers for property transactions (mandate). These documents need to be digitally prepared, signed, and lodged using an Electronic Lodgement Network (ELN), such as PEXA, unless an exemption applies.
As of 30 January 2023, the REIQ contracts have been updated to comply with the mandate by:
- Providing sellers with the ability to nominate the ELN platform to complete settlement. There are currently two approved ELN platforms, PEXA and Sympli. (McMahon Clarke is a PEXA subscriber).
- Removing the ability for the parties to elect to complete settlement via an ELN. The changes now make it mandatory for parties to complete settlement by that means unless the transfer is not classified as a required instrument under the Land Title Regulation.
- Deleting the provisions allowing a party to withdraw from an electronic settlement. Parties can no longer opt out of e-conveyancing.
- Including a provision to clarify that communication via an ELN platform is not a notice for the purpose of the contract.
The mandate means most standard sale and purchase transactions will now have to be settled electronically. However, there are some exemptions which mean paper instruments may still be lodged with Titles Queensland. If an exemption applies, the lodger (eg law firm) can lodge the required instrument in paper form but, in that case, Titles Queensland will require the lodger to deposit an exemption request form with the instrument.
Under the Land Title Regulation, a required instrument does not need to be lodged electronically through an ELN if one or more of the following exemptions apply:
- A party is an individual person who is not themselves an ELN subscriber and is not represented by a legal practitioner (eg a self-represented buyer or seller).
- The ELN and/or Titles Queensland system does not have the functionality to complete the required transaction.
- When the e-conveyancing lodgement was attempted, circumstances beyond the lodger’s control prevented the lodgement from proceeding (eg on the settlement date there is no internet access).
- The instrument is required to be lodged with another instrument that cannot be lodged using e-conveyancing.
- Where a required instrument is lodged in combination with another instrument over the same title and a party to that other instrument is not an ELN subscriber or does not have an ELN subscriber (such as a law firm) acting for them.
- The instrument is lodged to replace another instrument that has been rejected or withdrawn and is part of a transaction where an associated financial transaction has been completed (eg a financial transaction where the purchase price or loan moneys for granting a mortgage have already been paid).
- The instrument being lodged gives effect to a transaction that is not an ‘ELN lodgement’ or ‘ELN transfer’ within the meaning of the Duties Act (Qld).
McMahon Clarke is a registered PEXA subscriber and experienced in effecting electronic settlement and lodgements with Titles Queensland. If you would like further details or assistance relating to the e-conveyancing mandate, REIQ contract changes, or e-conveyancing exemptions, then please reach out to a member of our Real Estate team.