If a registered owner or a registered interest holder dies or is divested of their ownership of land/interest by operation of law a transmission must be registered before any transaction can be lodged against the title or interest.
The key issues which often arise are the:
- requirement for a supporting statutory declaration, and
- correct entry of names.
Supporting statutory declaration
The practitioner certifying a transmission application must obtain - in addition to the client authority and instruction (A&I) - a statutory declaration from the applicant, describing the relevant event (e.g. death, bankruptcy) that brought about the transmission, and verifying that the applicant and no other person is entitled to be registered as owner in place of the existing owner. This is a requirement of the Certification of Electronic Instruments (Statutory Requirements and Retention of Evidence) Standard 2018 – LINZS20012.
The statutory declaration must refer to relevant documents evidencing the event (e.g. death certificate, probate or letters of administration, notice of bankruptcy in the Gazette).
Points to note:
- The statutory declaration is a long-standing evidentiary requirement for transmissions (the same applied in the paper environment and under the Land Transfer Act 1952- see s122(2) LTA 1952).
- The statutory declaration is a separate supporting document that must be retained with the client A&I form by the certifying practitioner. It is not attached to the electronic instrument in Landonline.
- An example statutory declaration form is available on this website for this purpose. Any statutory declaration that includes the prescribed information may be used.
- A client A&I must also be obtained (in order to confirm authority and verify identity etc).
These documents will need to be produced for compliance review.
Entry of names
The Registered Owner/Interest Holder section should record the person going off the title (e.g. the deceased).
The applicant section should record the person acquiring the title (e.g. the survivor or executor).
The following is a simple checklist to assist practitioners and legal staff with completing transmissions:
- A&I form(s) completed by the applicant(s):
- including photo ID as required by the Authority and Identity Requirements for E-Dealing Guideline 2018 - this provides evidence of client identity and authority for the application component of the transmission
- a copy of an application for transmission is not sufficient authority without the A&I as well.
- Statutory declaration of the applicant(s):
- examples of a statutory declaration form have been added to the list of land registration forms
- evidence of transmission e.g. death certificate, probate/letters of administration, certificate of incorporation.
- Check the preparation of the transmission is correct:
- ensure the person going off the title (e.g. the deceased) is selected in the Registered Owner/Interest Holder section
- ensure the applicant is the person acquiring the title (i.e. executor or survivor, not the deceased or the beneficiaries of the will)
- ensure the person recorded on the A&I form and the applicant are the same
- ensure the date the interest is acquired is correct for the specific event.
- Use 'Display Resulting Ownership' button to confirm you have completed the correct details.
- Double check the details:
- who is the deceased
- who is alive, i.e. survivor or executor.
For a transmission where the survivor has also died, two transmissions will need to be created. For more information on this situation, and other transmission related articles, refer to the article linked below.