Relying on instructions from another practitioner is insufficient

Through LINZ’s compliance review process, there have been a number of instances where a certifying practitioner has incorrectly relied on instructions from another practitioner.

Consequently, the Registrar-General of Land (RGL) has required the certifying practitioner to retrospectively obtain proper authority and instruction, and issued the practitioner with a qualified compliance certificate.

Example: A vendor’s practitioner requests a discharge from the chargeholder. The chargeholder’s lawyer then instructs the vendor’s practitioner to register the discharge.

This instruction is only sufficient if the chargeholder’s lawyer has specific written authority from the chargeholder to give such instructions. The RGL will require evidence of that authority in a compliance review. Similar mistakes occur for a new mortgage when a purchaser’s practitioner receives instructions from a mortgagee’s lawyer.

Certifying practitioners must obtain A&Is or letters of instruction from the parties themselves and not parties’ lawyers. A party’s lawyer can only give authority and instruction to a practitioner to certify for the party if the party’s lawyer is:

  • the party’s authorised signatory (e.g. under the Companies Act 1993), or
  • acting under the party’s written authority such as a power of attorney that includes specific power to issue such instructions.

If a party does not wish to instruct another party’s practitioner, then the party should instruct their own lawyer and their lawyer should certify and sign that particular instrument as the party’s representative.

To achieve this, multiple conveyancing professionals can be nominated for separate instruments and/or roles in a multi-party e-dealing. For more information, refer to the Property Transactions and E-dealing Practice Guidelines, July 2012.