- All paper Certificates of Title (‘CTs’) in NSW will be abolished on 11 October 2021.
- The retention by a lender (or lender’s solicitor) of the borrower’s physical CT will no longer prevent the borrower from selling or mortgaging the land; and the retention of a physical CT by a solicitor, similarly, will not prevent the client dealing with the land.
- In the lead up to ‘cessation day’, solicitors should consider their options.
On 17 March 2021, the Real Property Amendment (Certificates of Title) Bill 2021 (NSW) was introduced to Parliament. The accompanying explanatory note said:
‘The object of this Bill is to amend the Real Property Act 1900 to remove—
(a) the requirement for the Registrar-General to issue certificates of title for real property, and
(b) requirements for the Registrar-General to make recordings on certificates of title, and
(c) the Registrar-General’s powers to require the production of certificates of title, and
(d) requirements for land owners to produce and rely on certificates of title in conveyancing transactions, and
(e) provisions that restrict the use of electronic conveyancing.’
The Bill also makes consequential amendments to other Acts and regulations. The Bill passed on 11 May 2021 and the resulting legislation, the Real Property Amendment (Certificates of Title) Act 2021 (NSW) amends the Real Property Act 1900 (NSW) and other legislation to enable the abolition, by the Registrar General, of paper CTs.
The Office of the Registrar General has advised that this will occur on the 11th of October 2021 (see also: Goncalves, ‘The end of the road for Paper CTs in NSW’, 79 LSJ, July 2021, 88-89). The Act ominously terms this date ‘cessation day’, or, for our purposes here – ‘C-Day’ for short (see Sch 1, Div 1.1 of the amending Act). Victor Dominello, the Minister for Customer Service, has described the legislation as a ‘huge victory’, observing that ‘abolishing CTs removes the administrative burden for people to manage and locate [them] in an environment where all transactions are done electronically’.
But what does the abolition of paper CTs mean for lenders who have accepted the deposit of a CT as security for a loan or other financial accommodation? Or for solicitors who have previously been able to exercise a lien over a client’s CT as security for legal fees?