The following applies to dealings affecting the Torrens Title Register. The requirements may differ for documents registered in the General Register and the Water Access Licence Register.
Execution requirements for dealings involve seven characteristics:
- General execution requirements
- Transacting party type and its subset - the organisation type
- Status of the transacting party
- Transacting party role in the dealing
- Category of the signatory
- Authority for signing and
- Signatory verification.
Each of these characteristics is described below.
1. General execution requirements
The general execution requirements are defined by the Real Property Act 1900 and the Conveyancing Act 1919, their Regulations and the Lodgment Rules. The Acts require that every dealing must:
- be executed by or on behalf of each transacting party (i.e. the party dealing or the party taking)
- contain a Certificate of Correctness and
- include text where required that indicates the method of execution for the transacting party.
2. Party type
The execution requirements for the transacting party type are determined at two levels:
(a) the party type, i.e. person or organisation (i.e. a legal entity that has the right to deal with land in its own name); and
(b) where the party is an organisation, the organisation type, i.e. company, government entity, specific government entity with special execution rules, NSW legislated organisation type, Aboriginal body, or religious organisation.
Execution requirements for a person are determined under s36(1E) and s117 Real Property Act 1900.
The execution requirements for an organisation are determined by a combination of s36(1E) and s117 Real Property Act 1900 and specific legislation for the legal entity.
The organisation type and their execution requirements generally fall into six categories:
1. Companies
With regulation under the Corporations Act 2001 and administered by the Australian Securities and Investment Commission (ASIC). Companies with unlimited/limited/no liability, cooperative and Starr-Bowkett societies registered as a company, Australian registered foreign companies and non Australian registered foreign companies all have common execution requirements.
2. Government entities
Constituted under Commonwealth or NSW legislation, e.g. Federal or State government bodies, statutory authorities, and statutory state owned corporations.
3. Specific government entities with special execution rules
For example Local Councils, Minister Administering Environmental Planning and Assessment Act 1979, NSW Rural Assistance Authority, Area Health Services, and Statutory Health Corporations.
4. NSW legislated organisations
With regulation administered by the NSW Office of Fair Trading, i.e. incorporated associations, cooperative housing societies, Community Title Associations and Strata Title Owners Corporations.
5. Aboriginal bodies
Under Commonwealth or NSW legislation, i.e. Local Aboriginal Land Councils, the NSW Aboriginal Land Council, Aboriginal Associations, Indigenous Business Australia, and Indigenous Land Corporation.
6. Religious organisations
With their own organisation specific legislation and with execution rules defined in the legislation.
Entities such as a Court Officer, Sheriff and Protective Commissioner are statutory agents and are treated as signatories on behalf of a transacting party.
3. Status of the transacting party
The status relates to whether the transacting party is subject to a limitation. A party with a limiting status has special requirements on how the dealing must be executed. Limiting status includes:
- a person who is incapacitated, illiterate, protected, a defaulting debtor, bankrupt or a minor
- an organisation that is a defaulting debtor, deregistered, in administration, in receivership, in liquidation or
- a person or organisation that is subject to judicial action, e.g. by the Court or Sheriff.
Any limiting status of the transacting party over-rides the normal execution requirements for the party type. The execution requirement is determined by the legislation relating to the limitation.
4. Party role
The party role, i.e. if the party is dealing with/burdened by or taking/benefiting from the transaction, and the nature of the transaction for certain party types determine who can be a signatory and the rules for authorising and verifying the signatory for the transacting party. For example, a solicitor cannot sign for a party dealing (except for a withdrawal of caveat), and a Local Council disposing of land has explicit rules as regards execution.
5. Signatory category
The number and the capacity of signatories required for a transacting party depends on the party type, their status, party role and the signatory category.
There are seven signatory categories:
- proprietor or applicant in person
- an appointed officer in the transacting organisation
- official seal (where provided for in governing legislation for the transacting organisation)
- delegate, i.e. an authorised officer or appropriately authorised person
- registered agent, e.g. an attorney specified in a registered power of attorney
- licensed agent, e.g. a solicitor, barrister or licensed conveyancer
- a statutory agent, e.g. the representative of an incapacitated person, parent/guardian of a minor, Protective Commissioner, a Manager appointed by the Supreme Court, the Trustee for a bankrupt proprietor, an administrator, controller, liquidator, or receiver for a company, the Sheriff, a Court Officer.
Where an official seal is used, the signatory requirements essentially apply to the person attesting the affixing of the seal, see Section 7 below.
6. Authority
The authority under which the signatory is signing must be defined, and relates to both the legislation for the party type and the signatory category. Where the signatory is an agent, they must state they are signing on behalf of a specified transacting party.
The legislation supporting the authority is usually not explicitly quoted with the execution, but is assumed in relation to the stated signatory capacity for the party type, e.g. solicitor, director, company secretary. For some specific party and signatory combinations, the legislated authority is required to be stated on the instrument.
A certified copy of the instrument of delegation will be required where legislation does not provide a means of verifying the authorised signatory.
7. Verification of the signatory
The method of verification is determined by the party type, nature of transaction and signatory category. Verification comprises a certification statement on the dealing as regards:
- the document being signed in the presence of the attesting witness and
- the identity and capacity of the signatory.
Verification is evidenced by one or more of the following:
- certifications and evidence on the dealing, e.g. witness certification statement, attestation of affixing of the official seal, power of attorney registration book and number
- supporting evidence provided with the dealing, e.g. articles of association, instrument of delegation, Court Order
- independent verification of the authority of the signatory, e.g. NSW General Register of Deeds, registers held by ASIC, Law Society of NSW, NSW Office of Fair Trading, the Office of the Registrar of Aboriginal Corporations, Government organisation records, and authorisations given to or held by the Registrar General, e.g. specified officers/positions for some financial institutions.