August 2020

COVID-19 and the electronic age

The electronic age

It’s no secret that the legal profession has always been considered an “old” profession, steeped in history and tradition. 

Sometimes you really have to read between the “heretos and wherefores” to understand exactly what a lawyer is trying to say!

But this is not true for all lawyers and law firms – Bartier Perry has an established innovation committee dedicated to exploring and implementing the most innovative and effective methods for doing things.  It is because of this focus on innovation that Bartier Perry was able to easily adapt to the new “work from home” culture forced on us by the COVID-19 pandemic, and the need for the electronic handling of documents in property transactions.

Until recently, it was not possible to conduct a property transaction entirely electronically.  There had been small steps taken toward facilitating this, such as by validating electronically signed contracts for sale, leases, deeds and agreements (see our bulletin regarding the Conveyancing Legislation Amendment Bill 2018 here), but the legal profession still lagged in adopting electronic executions in relation to property transactions.

Since April, New South Wales has seen the introduction of several temporary pieces of legislation and industry guidance/practice notes to address the issue of the electronic execution, witnessing and registration of documents in a time where people are social distancing and reducing the handling of “paper”.

The new measures

As we have said above, it has been considered valid to electronically execute contracts for sale, leases, deeds and agreements since 2018.  Despite this, most practitioners insisted on executing such documents using “wet ink” and receiving original signed counterparts in property transactions.  It was difficult for practitioners to come to terms with abandoning a “wet ink” signature.

Further, NSW Land Registry Services (LRS) lagged behind, and did not accept electronic signatures as a general rule until the onset of the pandemic. 

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (Regulation) came into effect on 22 April 2020, and permits the witnessing of the signing of documents electronically, through the use of audio visual link (such as Zoom or Skype). You can click here for our recent bulletin which provides more details on how to witness a document electronically.

From 11 May 2020, LRS developed a temporary lodgment process, whereby they have allowed practitioners to electronically lodge paper dealings which were not previously eligible for electronic lodgment.  This temporary lodgment process also allows the electronic execution and witnessing of these dealings.

The Regulation, together with LRS’s temporary lodgment process, meant that all property transactions could now be completed electronically from start to finish, including execution, witnessing and lodgment for registration - for the first time ever.

Unfortunately, the Regulation is only temporary and will expire 6 months from 22 April 2020, unless the Government decides otherwise. LRS’s temporary lodgment process will also cease once the pandemic is over. 

It seems to us counterintuitive to remove these measures now that they have been developed and introduced, especially when they were long overdue in the first place.  We would like to see these measures continue permanently post COVID-19 given the general move toward electronic executions and handling of documents in recent years across all industries, but this is not our decision to make! 

We will be sure to keep you updated about property transactions in the electronic age!

The property team at Bartier Perry have significant experience in handling property transactions (both electronic and manual transactions) and are ready to assist you.

Author: Julia Yassa & Peter Barakate

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