A record of title of Māori land will not always show a conclusive notation confirming Māori Freehold Land status
In some instances, the status must be checked and verified with the Māori Land Court.
Before a practitioner can submit an e-dealing transfer, lease or mortgage of land which is or could be Māori land, they must give certifications under section 27 of the Land Transfer Act 2017 (LTA) and the Land Transfer Regulations 2018 that either:
- any statutory provisions specified by the Registrar-General of Land (RGL) relating to Māori Freehold Land have been complied with, or
- any statutory provisions specified by the RGL relating to Māori Freehold Land do not apply.
When the Māori land certification appears on the e-dealing screen, it has been prompted by the operation of the 'Māori land flag'. This is a warning device applied to records of title by LINZ, based on data obtained from the Māori Land Court, which indicates that the land in question is, or may be, Māori Freehold Land.
Whenever the certification appears, and the title doesn't show conclusively whether the land is Māori Freehold Land or General Land, practitioners must investigate the status of the land, by making:
- a full title search, and, if necessary
- a search of prior titles and/or
- enquiries of the Māori Land Court and/or
- other enquiries as may be appropriate.
If the land then proves to be Māori Freehold Land, the practitioner must obtain confirmation (or whatever else may be required) from the Māori Land Court, under Te Ture Whenua Māori Act 1993. Where confirmation is required, the practitioner will also need to lodge an image of the Māori Land Court confirmation notice when lodging an e-dealing. If confirmation is not required, the practitioner may be asked to provide evidence of this instruction.
When the Māori Land Court procedure is completed, the practitioner will be in a position to make the correct certification and submit the e-dealing for registration.
In cases where the status of the land is unclear and, without proper investigation, a practitioner gives a certification that the specified provisions do not apply, the certification could be 'materially incorrect' within the meaning of section 29(1)(b) LTA. This could result in the revocation of the practitioner's e-dealing Digital Certificate.
A false certification may also constitute a breach of rule 2.5 the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and/or rule 9 of the Lawyers and Conveyancers Act (Conveyancing Practitioners: Conduct and Client Care) Rules 2008.
Accordingly, it is essential that practitioners take the necessary steps to verify land status and comply with Māori Land Court requirements in these circumstances.