Witnessing land registry forms

JPs' statutory obligations
Other witnessing requirements
Other documents presented with land registry forms
Further information

Parties involved in property transactions are required to complete forms prescribed under the Land Title Act 1994, the Land Act 1994 and the Water Act 2000. The information provided in these forms about ownership and other interests in land and water allocations is used to update the Titles Registry records.

This information alerts Justices of the Peace and Commissioners for Declarations (collectively referred to here as JPs) to:

their legal obligations when witnessing land registry forms
the witnessing procedures recommended by the Registrar of Titles.

Note: JPs may witness these forms anywhere in Australia or overseas.

Please note, only a legal practitioner should provide legal advice on the preparation or content of land registry forms.

JPs' statutory obligations

When witnessing any land registry form for an individual, under s 162 of the Land Title Act, and s 311 of the Land Act, a JP has an obligation to ensure that:

the person is entitled to sign the form
the person signs the form in their (the JP's) presence
he/she (the JP) is not a party to the form.

These legal obligations, which help to streamline the conveyancing process and safeguard against identity fraud, are discussed in detail below.

1: Ensure that the person is entitled to sign the document

JPs have a legal responsibility to take reasonable steps (those that an ordinary person would consider prudent and fair in the circumstances) to ensure that the person signing the document is entitled to do so.

They must therefore ensure that the person is the holder (registered proprietor), or is about to become the holder of the relevant interest in land. A person selling or mortgaging a property should be able to provide at least one of the following:

a local government rates notice showing ownership of the property
a recently issued current title search statement showing their name
a recently issued registration confirmation statement
a current certificate of title (if one exists)

A JP should compare details about the property (e.g. lot on plan description or title reference) on these documents with the information provided on the form to be witnessed and, if the details do not match, decline to witness the signature.

A new purchaser presenting a transfer and/or mortgage document for witnessing may not be able to provide the above evidence (as their details have not yet been recorded in the Titles Registry). However, they may be able to provide a copy of the contract of sale as evidence of their entitlement to sign the form.

JPs must also be satisfied as to the identity of the person signing the form. Though they are free to decide what proof of identification they require, photographic identification, such as a driver’s licence or passport, is usually the most reliable. They should witness the signature only after the applicant has satisfactorily proved their identity.

Before witnessing their signature, the JP may also question the person signing the form to confirm that they understand its nature and effect. If they are not satisfied that the signatory has this understanding, they should decline to witness.

2: Ensure that the form is executed in their (the JP's) presence

This obligation is self-explanatory. A form provides spaces for each person to sign separately. There should be only one signature per space, and each signature must be witnessed separately. The date of execution must also be included in the space provided.

3: Ensure that he/she (the JP) is not a party to the form

Any person with a vested interest in the transaction cannot also be a witness to its execution (signing). For example, if A and B own land together and A is a JP, A cannot witness B’s signature if they are both signing a Land Registry form.

Care should also be taken when someone is signing under a power of attorney. For example, where A and B own the land together and C is both an attorney for B and a JP. If A signs in their own right and C signs on behalf of B, C cannot then witness either signature as he or she is involved in the transaction.

Other witnessing requirements

When witnessing land registry forms, JPs should follow the general requirements and practices that apply to their duties. These include ensuring that:

the signatures of all parties are in original handwriting in dense black or blue ink (red ink is unsuitable as it shows only faintly on imaged copies of documents). Signatures made by stamps are not acceptable
the JP’s full name is clearly printed on the document where he/she has signed as a witness. Initials as part of the name are not acceptable
all items on the form have been completed before it is witnessed. Any alterations to the information on the form should be initialled by all the parties involved
the JP’s registration number is recorded on the witnessed document. (Using a seal of office is not a requirement of the Titles Registry).

Recordkeeping

The Registrar of Titles has extensive powers of formal inquiry and may require JPs to produce records relating to land registry forms they have witnessed.

JPs should therefore record the details of any relevant information and documentation which was supplied as proof of identity and evidence of the signatory’s entitlement to sign. This could include such items as:

title reference
property description
names of parties
type of transaction.

They should also record relevant information when they decline to witness a form. If the circumstances warrant it, they may consider advising the Registrar of Titles of this information.

Further information

For further information, contact the Titles Registry.

Last reviewed 3 June 2011
Last updated 10 December 2010