Some instruments require consents from affected interest holders, for example, mortgagees, caveators and territorial authorities.
These instruments will display multiple certification options for each interest on the affected titles. For example, if there are different mortgages or caveats on different titles, all of the mortgages or caveats will be displayed for certification.
When signing these types of instruments you need to select the appropriate option for your client and the mortgage or caveat.
Easement example
An easement will display the following mortgage certification options for the grantor to select from:
Option 1. I certify that the Mortgagee under Mortgage 123456.1 has consented to this transaction and I hold that consent.
Option 2. Mortgage 123456.1 is being discharged/extinguished in a prior dealing or in the same dealing.
Option 3. Mortgage 123456.1 does not affect the servient tenement; therefore the consent of the Mortgagee is not required.
If the conveyancing professional is acting for the grantor and the mortgage number refers to their client’s land, the servient tenement, the conveyancing professional should select:
- Option 1 if the mortgage is being discharged in the same dealing or in another dealing that will be registered prior to this dealing.
- Option 2 if the mortgage is not being discharged or won’t be discharged until after the registration of this dealing. The CP should obtain the consent of the mortgagee.
- Option 3 if the mortgage number refers to the other parties’ land, the dominant tenement.
Reciprocal easement example
If the easement being granted is a reciprocal easement, for example, the parties for both titles are granting easements, the dealing should be set up with each conveyancing professional as both grantor and grantee.
In this case the conveyancing professional will make certifications in relation to those mortgages that affect their client’s land, for example Options 1 and 2. They can select Option 3 in relation to the mortgages that affect the other parties’ land, as the conveyancing professional for the other parties will hold the consent for their mortgages.
Variation or Surrender of easement
For a Variation or Surrender of easement an additional certification option will display:
I certify that the territorial authority has consented to this transaction and I hold that consent, or the affected easement is not the subject of a condition imposed by the territorial authority.
If the easement being varied or surrendered is a compulsory easement, the council’s consent will be required pursuant to s243(a)(iv) Resource Management Act.
Variation of cross lease
For a variation of cross lease, the following certifications will display for the lessor:
Option 1. I certify that the Mortgagee under Mortgage 123456.1 has consented to this transaction and I hold that consent.
Option 2. Mortgage 123456.1 is being discharged/extinguished in a prior dealing or in the same dealing.
Option 3. Mortgage 123456.1 does not apply to the estate or interest affected by this transaction.
Option 3 should only be used if there are separate conveyancing professionals acting for the different lessors and the mortgage affects the lease that is not being varied.
Multi-party instruments warning
Compliance reviews by the Registrar-General of Land have found cases where practitioners have mistakenly certified on behalf of multiple parties to instruments when they are not authorised by all parties.
When this happens the Registrar-General of Land will issue qualified compliance certificates.
To avoid this make sure:
- the instrument is set up correctly
- any certification made on behalf of a party is supported by a proper A & I form.
Sometimes multiple parties to an instrument may each choose to be represented by their own separate practitioner or conveyancing professional. For example, where there are:
- two or more transferors
- two or more mortgagees
- grantees of an easement appurtenant to 2 or more properties.
In Landonline each individual party in a multi-party instrument can be represented by their own conveyancing professional and each conveyancing professional can certify for the party they represent.