By Jen McMillan and Michael Osborne -
Snapshot
- All remaining NSW paper certificates of title are expected to be cancelled mid-2021.
- Solicitor’s liens will become ineffective.
- Equitable mortgagees holding certificates of title as security should consider alternatives, including lodging a caveat.
With the cancellation of paper certificates of title expected to occur mid-2021, there are significant practical implications for legal practices and other businesses to consider, including the impact on liens and equitable mortgages.
The Office of the Registrar General (‘ORG’) announced in August 2020 that the New South Wales Government has approved the cancellation of all certificates of title as part of the implementation of electronic conveyancing. The announcement was made in a news item on the ORG website – ‘Important changes to liens and equitable mortgages’.
The continued use of paper certificates of title is at odds with a fully electronic conveyancing system. Phase one of the move away from paper certificates of title (‘CTs’) involved converting the CTs held by authorised deposit-taking institutions (‘ADIs’). As at 1 October 2018, all paper titles held by ADIs had been converted to electronic CTs. This next phase is the final step in cancelling paper CTs in NSW and is not unexpected. The Registrar General has had the power to declare a date upon which CTs will cease to issue since changes were made to the Real Property Act 1900 in 2015 with the introduction of section 33AAA.
Legislation will be introduced to make this change, but in the meantime, practitioners need to carefully consider the impact of the changes on liens and equitable mortgages in relation to any security held by the legal practice, as well as the impact of this change on clients. There are also other practical matters to consider that follow from the cancellation of certificates of title.
