The term conveyancing is defined to be as the legal process that helps in preparing the mortgage, sales deed and some other kinds of legal documents that is created and transferred. It also deals with the land interest which means that there is a right of ownership over the land like on lease or on ownership as per the HM Land Registry 2003. Somehow, this kind of system is creating tension and anxiety towards those people who are kind of involved in this legal process and interdependence of owners, companies, property developers and many more.
A comprehensive system like electronic conveyancing or also known as e-conveyancing has been started off to save time, money and reducing the delay of work provided. The work is going to be paperless, fraud resistant it is capable of simplifying electronic conveyancing of the documents, communication between the different parties through networking, title’s online investigation, registration and completion of the work and many other things. These things can be addressed by electronic conveyancing. It will also get transparency and will help to do the work faster. This system is provides its customers with various facilities and good quality services, transaction intermediaries and many others. New tools have been initiated to modernise the procedures like method of payments, suppliers of the IT system and several others. It can be also described that by introducing the process of e-conveyancing, the structure of land conveyancing not only can be reshaped but it will also help to work in a better manner that will help in providing the customers with efficient and a good quality service. Somehow, implementing e-conveyancing seems to be a challenging job as it involves renewing of the existing Land Registration Rules and Acts. There are several changes that needs to be done like legislative changes so that the practices of electronic documents, digital signature and several others must be legalised. There are many countries in which e-conveyancing already exists. One such country is Australia. People in Australia are making the most of it. The real estate agents and the conveyancers are choosing this process to provide their clients with better services and using the internet to the market. This process keeps the client updated and it also provides online access to the clients. Electronic conveyancing has become a common place for all the real estate agents to deal with their clients easily by using the latest technology to sale the properties, which also includes auctions, sales by tender and many others. Through this process, many agents can operate and keep updates about the large data of the property with themselves.
In the year 2001, it has been see that the implementation and development of the National Electronic Conveyancing within Australia is dependent on the national approach. An agreement has been formed between the industry and the government which states that this is the time to efficiently improve the process that is linked with the real estate business by applying National Electronic Conveyancing. This step can only move forward when the required changes will be made like the responsibilities and role of the technology. In order to use the system of electronic conveyancing, the space that is between the systems of the Land Registries’ and the system of the conveyancing industry must be filled that will result in creation of the documents with the help of the technology that will be required to print and later on will be signed by the respective parties and then will be send to the Land Registry for registering the titles. Some cities of Australia do have sufficient fund to carry out this process of e-conveyancing.
The eight States and Territories in Australia have joined together with the professional stakeholders in the year 2005 to develop the process of National Electronic Conveyancing. In the year 2005, The National Electronic Conveyancing Office (NECO) was established so that it can help in supporting the implementation and development of the National Electronic Conveyancing. The National Electronic Conveyancing Office (NECO) included a National Business Model that got developed with the consultation of the stakeholders within the years 2005-2008. It is explained as the context of the business for in the industry of the mortgage financing and conveyancing in Australia. In the year 2008 it has been said that National Electronic Conveyancing provides an effective and efficient platform to settle down the transactions of the real estate properties electronically. It also prepare the registry of the instruments electronically with the land registry and also fulfils the obligations of the tax electronically.
On the other hand the Australian Capital Territory did not sign the intergovernmental agreement to form Electronic Conveyancing National Law (ECNL) but all the other jurisdictions have signed this agreement. On 21st of November 2011 the intergovernmental agreement came into force and the establishment of Australian Registrars Electronic Conveyancing Council (ARNECC) was done. The ARNECC comprises of the registrars of the jurisdiction. From each jurisdiction, the registrar becomes the member of the ARNECC or it may appoint a nominee on the jurisdiction of the registrar by signing the intergovernmental agreement.
The establishment of Australian Registrar Electronic Conveyancing Council has been done to implement and to manage the regulatory framework for the National Electronic Conveyancing so that it can lodge the documents with the registrar for the relationship of the registrar with the Electronic Lodgement Network operator. The duty of the Electronic Conveyancing National Law is to implement National Electronic Conveyancing by giving them legal authority so that they can create and lodge the electronic instruments are the documents hand to also give such electronic instruments that must be treated in the exact way as the manual instruments. The National Electronic Conveyancing is the business and the legal environment to prepare the registry of instruments electronically with the land registry also settle down the transaction of the property electronically. An online business policy known as the Electronic Lodgement Network has been formed to deliver the National Electronic Conveyancing in Australia. It is a web hub for the party to prepare and settle down the transactions electronically and for the registration it also helps to lodge down the documents electronically at the proper land registry. It has been a channel to present the documents for the process of lodgement with the land registries. The work of Electronic Lodgement Network is to provide a mechanism to settle down the financial aspects of the conveyancing transaction.
There are some requirements of the security that only the registered subscribers that are the lawyers, lenders and the conveyancers has the permission to use this system on the behalf of their clients. The electronic conveyancing system will not be available for the normal public to use until they must represent themselves by the subscriber. In the electronic transaction a subscriber who is representing their client must enter into the agreement of the client authorisation and it must authorise the subscriber to act on behalf of the client. In order to enter the agreement of the client authorisation it is necessary for the subscriber that he or she must do the verification of the client’s identity as per the rules of the verification of Identity. Several lodgement and data verification will be checked before the settlement. The subscriber will sign the electronic documents I fixing the digital signature in that document. The settlement of finance will only be automatically done by the electronic fund transfer when there is completion of the convincing transaction and it is prepared to settle on the given settlement date. The instruments of the land registry will be lodged electronically with the Land Registry when the settlement has been done.
A group of stakeholders has been taken for the consultation regarding the National Electronic Conveyancing since the year 2004. In order to develop the legal framework of the national electronic conveyancing the important stakeholders have involved from the year 2009 to release the Model Participation Rules on the date of 30 March 2012. On the date 6th of July 2012 the Consultation Regulation Impact Statement attached along with the draft ECNL was released.
The Regulation Impact Statement (RIS) was prepared as per the Council of Australian Government (COAG) and its requirements is to evaluate the impact on the Australian Government Community and the industry by introducing the National Electronic Conveyancing. The structure of the regulation impact statement consists of 8 sections. Section 1 states the nature of the problem and how big the problem is in Australia. Section 2 lays down the main objectives of the action of the government. Section 3 discusses the regulatory options that are available. Section 4 provides with the details of the approach that has been taken to the impact analysis and also provides with the details of the results that includes benefits and costs and also gives out the major recommendations and findings. Section 5 consists of consultation that has been undertaken. Section 6 outlines the options that has been recommended and its conclusion. Section 7 explain about the implementation and the review strategy and lastly Section 8 describe the definitions and the terms.
There are certain difficulties that e-conveyancing have been facing like security issues and entering and verifying digital signature.
Security issues: one of the major necessity is security that is required for every stage of the process of registration and of the conveyancing that also includes the service electronic fund transfer, logical, physical and procedural measures of the security and also the security of the data or the e-documents. The component services who stores the data must protect the data against the access, corruption and loss by the personnel that are not authorized. There is some imbalance between the security, the usability and the cost in the services of the e-conveyancing. There are some risks in the data of the e-conveyancing and the process of it and it has been categorised in the following manner like integrity, authenticity, non-repudiation, audit trails and privacy. The service of the e-conveyancing must assure the integrity of the messages and the data against some accidental alteration. It has not been specified that there is some integrity to secure the data or not. Authenticity of the e-conveyancing process has not been mentioned that means whether the buyer and the seller’s, the lenders, staffs of the Land Registry, individual conveyancers have been authorised to use this kind of services or not. There must not be non-repudiation of the exchange of the information or of the data before any kind of alteration been done. There does not seem to be any kind of audit trails in the e-conveyancing services. There is no kind of privacy that has been maintained in the security of the data, documents, information and the messages that has been exchanged between the parties and the users.
Entering and verifying digital signature: in today’s world digital signature is the most important key factor in the e-conveyancing services. Somehow, this digital services has not been used by most of the countries and it has been one of the major difficulty because there are certain people who try out some fraudulent methods for their work. There must be a pair of keys like the private and the public key and the smart card to enter and verify the signature of the staff and the client so that no fraud is being done. The smart card helps out in identification of each person and his number and the password. Several steps must be taken for the verification of the data of oneself. The private key must not be distributed publicly otherwise it would make chaos. It must be kept secretly and it must be only used to sign the documents. The pubic key must be distributed publicly and it must be used to verify the signatures. Certain areas in Australia who have not implemented the technique of the digital signature. This is also creating some security problems and it must be implemented as soon as possible to avail security in the e-conveyancing services.
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