e-Conveyancing frequently asked questions
Disclaimer: these FAQs are intended to act as a general guide and not as legal advice. They are provided in good faith and believed to be accurate at the time of publication. They are provided on the basis that you will be responsible for making your own assessment of the contents and that they are appropriate for your particular circumstances. If you have any issues of a legal nature, you should consider seeking the advice of an independent legal practitioner who is experienced in property matters.
Will all Land Services instrument types be available in electronic conveyancing?
The document types able to be lodged via an ELNO are: Discharge of Mortgage, Transfer, Mortgage, Withdrawal of Caveat and Caveat. Transactions that are eligible can be found on the Eligible Dealings page of this website. The range of documents capable of electronic lodgement will be expanded over time.
What dealings have been mandated in South Australia?
The following documents executed after 3 April 2017 must be lodged through an ELN;
* All stand-alone Discharge of Mortgage dealings
* All stand-alone National Credit Code Mortgage dealings, where the Mortgagee is an Authorised Deposit-taking Institute (ADI).
* All remaining stand-alone Mortgage dealings are to be lodged through an ELN
* All stand-alone refinance transactions (i.e. any combination of Mortgages and Discharges of Mortgage) are to be lodged through an ELN.
What exemptions apply to mandated dealings?
The mandatory electronic lodgement of a Discharge of Mortgage dealing will not apply when:
* Releasing part of the land in a Certificate of Title (e.g. Allotment 5 in DP98765)
* Releasing part of the money
* Releasing one of the Mortgagees
* Releasing the undivided share and/or the personal liability of one of the Mortgagors
* Discharging a Mortgage of a Subsidiary Interest (e.g. Mortgage of Lease) or a Mortgage of other Non-Fee Simple Interest (e.g. Mortgage of Crown Lease, Mortgage of Life Estate etc.).
The mandatory electronic lodgement of a Mortgage dealing will not apply when:
* Mortgaging part of the land in a Certificate of Title (e.g. Allotment 5 in DP98765)
* Mortgaging the interest of one (or more, but not all) of the Registered Proprietors (e.g. a tenant in common or a joint tenant)
* Mortgaging a Subsidiary Interest (e.g. Lease, Mortgage etc.) or other Non-Fee Simple Interest (e.g. Crown Lease, Life Estate etc.)
* Mortgaging the interest of a minor or protected person.
The mandatory electronic lodgement of a Mortgage or Discharge of Mortgage will not apply when:
* The subject land cannot be transacted electronically
* The Electronic Lodgement Network is not available and has not been available for one clear business day.
Will Land Services accept lodgements submitted electronically outside current business hours?
No. Documents lodged in paper and electronically through an ELNO will only be accepted during normal business hours.
Will electronically lodged documents take precedence over documents lodged in paper?
No. Documents lodged electronically with Land Services SA by an ELNO will be processed using the same lodgement time stamp system currently used for paper lodgements. Documents will receive a dealing number from the same number set as used for paper. Electronic documents will not be received from an ELNO outside normal business hours.
What happens if other parties to the contract are not eligible to subscribers to an ELNO?
Transactions that have parties to the contract that are not eligible to subscribe to an ELNO will need to proceed in paper. For further information on eligibility to subscribe, please refer to the Participation Rules which can be found here.
Will I be able to obtain a search of an electronic document?
Yes. All documents lodged electronically will be searchable through the existing Land Enquiry function.
How will I know when electronic documents have been registered?
Once documents have been registered Land Services SA will send a message to the ELNO workspace indicating that document processing has been completed.
Will stamp duty payments be made through an ELNO?
Yes. It will be possible to pay stamp duty on transfers as a disbursement from a financial settlement. Current processes for assessing duty remain unchanged and further information on this can be found here.
Can anyone use an ELNO?
No. Access is restricted to approved 'Subscribers' who must be authorised under the laws of South Australia to undertake conveyancing work.
For further information relating to subscriber eligibility please refer to the Participation Rules which can be found here.
How do I establish that my client has "the right to deal"?
A requirement of the Participation Rules is to take reasonable steps to establish the right to deal. Right to deal is the entitlement of the person to enter the conveyancing transaction. You are currently required to do this for paper transactions.
Generally when you act for a seller, the right to deal is established by ensuring that your client is the person named as the registered proprietor in the current title search.
Generally when you act for a buyer, the right to deal is established by ensuring that your client is the person named as the purchaser in the contract of sale.
Examples of documents which may assist you in establishing the right to deal include, but are not limited to:
- Local government rates notices
- Current land tax assessment notices
- ASIC search
ARNECC has prepared a Guidance Note on ‘Right to deal’ which may be of assistance and can be found here.
Who controls the operations of Electronic Lodgement Network Operators (ELNOs)?
ELNOs must comply with Operating Requirements which are based on Model Operating Requirements published by the Australian Registrars' National Electronic Conveyancing Council (ARNECC).
Can interstate conveyancers conduct electronic conveyancing transactions in SA?
Yes. Provided that a subscriber is permitted under the laws of South Australia to undertake a conveyancing transaction in South Australia, the subscriber will be able to operate and lodge documents with Land Services through an ELNO.
Can SA conveyancers conduct electronic conveyancing transactions in other states?
Yes. Provided that a subscriber is permitted under the laws of that jurisdiction, a subscriber can use an ELNO to facilitate settlements in other jurisdictions.
Will indefeasibility of title apply where documents are lodged electronically?
Yes. Indefeasibility of title is not affected by electronic lodgement.
Do I need a special license to participate in electronic conveyancing?
No. Licensed Settlement Agents and Australian Legal Practitioners do not need additional licenses. Subscribers will have to register with the Electronic Lodgement Network Operator and enter into a Participation Agreement in order to transact.
Do I need additional insurance to participate in electronic conveyancing?
Insurance requirements can be found in the SA Participation Rules which can be found here.
Why is e-conveyancing being mandated when there is no market competition?
The legislation allows for multiple electronic lodgement network operators. There is currently the one fully operational ELNO, however two other ELNO’s have been approved and are currently working towards integration.
How will members of the public ascertain details (signatures/witnessing/evidence) relevant to any possible investigations or enquiries into property transfers?
In the same manner as occurs in paper, if a party has a valid reason to seek information relating to a land registry instrument then they will be able to obtain that information by obtaining a copy of the document from Land Services SA, whether the instrument was lodged in paper or electronically.