The guidance on this page remains in force following the end of New Zealand’s COVID-19 Protection Framework (traffic lights) on Monday 12 September, noting:
- the Authority and Identity Requirements and Electronic Signing of Documents Interim Guideline - LINZ OP G01247 remains in force, and
- the guidance relating to statutory declarations and enduring powers of attorney remains in force until 20 October 2022.
Revocation of the Interim Guideline
The Interim Guideline remains in force until it is revoked. The Registrar-General of Land will give notice of his intention to revoke the guideline prior to doing so. No such notice has been given.
COVID-19 introduced new challenges for practitioners undertaking conveyancing. This prompted a need for further guidance on key issues including safe protocols for verifying client identity, witnessing and signing documents when working remotely. LINZ has published interim guidance on these matters which modifies and relaxes some of the existing requirements set out in:
- the Authority and Identity Requirements for E-Dealing Guideline 2018 – LINZG20775 (the 2018 Guideline)
- and the Authority and Identity Requirements for E-Dealing Standard 2018 – LINZS20018 (the 2018 Standard).
LINZ’s Authority and Identity Requirements and Electronic Signing of Documents Interim Guideline - LINZ OP G01247 (the Interim Guideline) was issued on 30 March 2020. It is intended as a guide to how practitioners may meet LINZ requirements if it is not possible to meet a client in person due to COVID-19 precautions.
The ultimate responsibility for e-dealing certifications remains with the practitioner, and each practitioner must exercise their professional judgement when relying on the different means of verifying client identity outlined in the Interim Guideline.
The Interim Guideline includes changes in the following areas:
Use of audio-visual technology
Online audio-visual technology, such as Skype, Zoom, FaceTime or Microsoft Teams etc, may be used to obtain authority, witness A&I forms, and complete client identity verification in the current circumstances where it is not possible to meet with clients in person.
Importantly, it is now possible to use audio-visual technology with both new and existing clients. The Interim Guidance relaxes the restrictions which otherwise required that the practitioner must have known their client for more than 12 months and already hold a copy of their photo ID on file (see Section 4.7 of the 2018 Guideline).
The other requirements of the 2018 Guideline continue to apply, In particular, the audio-visual session should not proceed if there are any concerns that the client may lack capacity or is acting under duress, or if practitioner is not able to simultaneously see and hear their client and clearly see their photo ID and what documents are being signed for the duration of the session.
The Interim Guideline outlines further steps that should be taken to verify identity for new clients (see section 2.2.1 of the Interim Guideline).
Practitioners may therefore choose to use audio-visual methods provided they follow the Interim Guidance, take appropriate steps to confirm their clients’ identity and, where necessary, verify their ownership of the property (see section 4.2.2 of the 2018 Guideline). This is particularly important where the transaction is high risk (as defined in the 2018 Guideline).
The steps taken to verify client identity and related further inquiries in the case of new clients or high-risk transactions should be recorded in a file note and held with the A&I form.
The wording in section 5 of the A&I form should be modified accordingly where audio-visual technology is used.
If audio-visual technology is used the certifying practitioner should undertake this directly with their client rather than delegating this process to another person. If, however, this is not possible a practitioner may choose to rely on a trusted colleague (i.e. a practitioner or legal executive who works for the same firm or organisation) to undertake the audio-visual identity verification and witnessing on their behalf. A sole practitioner may regard their attorney appointed to comply with Schedule 1 of the Lawyers and Conveyancers Act 2006 as a trusted colleague for this purpose (see section 2.2.3. of the Interim Guideline).
An electronic signing system may only be used to sign A&I forms or other documents if it complies with the criteria in s228(1) of the Contract and Commercial Law Act 2017 (CCLA). Such compliance should be confirmed before using electronic signing methods.
An image of a signature that is simply inserted into a document will not be acceptable in any circumstances.
Detailed information about the use of electronic signatures is set out in section 3 of the Interim Guideline.
Verification of client identity is separate from electronic signature of an A&I form and must be completed to LINZ standards regardless of whether an electronic or traditional method of signing is used. This means that in addition to using an electronic signing system to sign an A&I, a practitioner will still need to verify their client’s identity by use of audio-visual technology.
Practitioners may be willing to witness their client sign an A&I form using audio-visual technology, but practical difficulties may arise if a client is unable to print the A&I form while restricted from leaving their home.
In such circumstances, a practitioner should consider whether their client is able to handwrite the required elements of an A&I form on to a page, which the practitioner can then review (to check and understand the content), witness signing and verify identity using audio-visual means.
The required elements should include:
- who the authority is addressed to i.e. firm;
- full name of the client;
- the details of the instruments being authorised – instrument type, instrument number, title reference, name of other party and other requirements as necessary (e.g. priority sum, memorandum number);
- the authority and instruction provisions set out on the A&I (i.e. for a private individual, the statements set out in section 4 of the approved form).
The practitioner will need to identify whether the transaction is high risk and attach any supporting documentation addressing that requirement, as well as verifying identity and making the certifications that deal with this.
If possible, the client should take a photograph of the signed handwritten document and send that to the practitioner to hold on their file. The practitioner should record in a file note that they witnessed the client signing the handwritten document remotely using audio-visual technology. The client should also hold the original signed handwritten document so that it can be returned to the practitioner when it is safe to do so.
If the client is not able to take a photograph of the document because, for example, they do not have a smart phone, then the practitioner must decide whether it is safe to proceed on the basis of having witnessed the client signing the handwritten document or not.
Instruments and documents which are to be lodged with LINZ in paper form cannot be signed using an electronic signing system. They must have original wet signatures as per the prescribed execution requirements for paper instruments set out in the Land Transfer Act 2017.
In normal circumstances, it is best practice to wait until original A&I forms and supporting documentation is received from a client or delegate witness before certifying instruments in a dealing. It is up to the practitioner, taking into account their client’s particular circumstances and any internal requirements or processes their firm may have, to decide whether they will make their certifications relying on something less than the original, such as a scanned copy or a photograph copy.
The Epidemic Preparedness Act (COVID-19) Notice 2020 expired on 20 October 2022 which revoked the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 and the Epidemic Preparedness (Protection of Personal and Property Rights Act 1988 - Enduring Powers of Attorney) Immediate Modification Order 2020. Therefore, statutory declarations and enduring powers of attorney signed on or after 20 October 2022 should be executed in person.