Section 56C of the NSW Real Property Act requires mortgagees to take reasonable steps to identify mortgagors or face cancellation of their mortgage. Section 56C(2) deemed steps prescribed by the regulations as reasonable as being reasonable for the purposes of s56C.

Regulation 16 of the Real Property Regulation 2014 prescribes “reasonable steps” as being an adherence to the Verification of Identity Standard set out in Schedule 8 to the NSW Participation Rules for Electronic Conveyancing. Further steps are required where a mortgagee ought reasonably know that any identity document is not genuine, any photo on an identity document is not a reasonable likeness or the person being identified does not appear to be the person to which the identity document relates or it would otherwise be reasonable to take further steps. Evidence supporting verification of identity must be kept by a mortgagee for 7 years after the mortgage is registered.

The Verification of Identity Standard prescribes:

  1. A face-to-face in-person interview.
  2. The mortgagor must bear a “reasonable likeness” to the person depicted in photographs in the identification documents.
  3. The identification documents must be originals and be produced by the mortgagor.

The standard then prescribes the identity documents required in a cascading fashion. The Gold Standard for Australian citizens or residents being the possession of an Australian or foreign passport and Australian drivers licence. Thus obviating the need for anything else to be produced. Thereafter as less probative documents are produced more of them are required. In the absence of either a passport or an Australian drivers licence (but not both), a birth certificate plus Medicare/Centrelink/Veterans’ card can be produced or if not available and in conjunction with a passport only, another government issued identity document with a photograph provided that if the government issued identity document does not contain a photograph, a birth certificate still must be produced. Those presenting with a dearth of documentation are required to be accompanied to the face-to-face interview by an “Identity Declarant” who themselves must be indentified in accordance with the standard and in certain circumstances must be a member of specified professions. Foreign nationals must be identified using their foreign passport and some form of government issued identity document with a photograph and if the government issued identity document does not contain a photograph, a birth certificate must also be produced.

The standard requires that the person identifying the mortgagor provide a certification in a prescribed form. It is also necessary for the lender to obtain a completed client authorisation form from the mortgagor. Any lenders requiring assitance in preparing their template documents for E-Conveyancing should contact Matthew Bransgrove.

E-Conveyancing

Version 3 of the participation rules were determined on 9 November 2015 by the Registrar General pursuant to section 23 of the Electronic Conveyancing National Law (NSW) which draws its force from and is an appendix to Electronic Conveyancing (Adoption Of National Law) Act 2012 (NSW).5

The rules adopted in QueenslandNSWVictoriaSouth Australia and Western Australia as part of the implementation of a national e-conveyancing system are near identical being based on the ARNECC model participation rules