Best practice when using a search and registration agent for e-dealing

It's a busy time of year. You're rushing from one job to another and a little help with e-dealing might come in handy.

A number of law firms are choosing to use search agents or other providers to prepare parts of conveyancing documents using e-dealing.

Todd Whitcombe, a member of the New Zealand Law Society's (NZLS's) Property Law Section Executive Committee says if you choose this route, it is important to remember that you, the solicitor, are still the conveyancing professional.

He says it's the same as doing a transaction on paper. That is the person who certifies and signs an instrument before it is submitted for registration must be a solicitor with a current practising certificate under the Law Practictioners Act, or a landbroker already licensed by the Registrar-General of Land.

The role of the e-dealing service provider is to prepare parts of conveyancing documents using e-dealing.

"They can lift the administrative load by preparing and possibly releasing instruments following settlement and assist with the final submission of the dealing for registration."

LINZ Acting General Manager, Customer Services, Brian Usherwood, advises there are two possible options for working with an agent for e-dealing.

"Either the conveyancer's firm would have to have an e-dealing licence and allow the agent to associate their staff to the conveyancer's firm (allowing access to the firm's e-dealing licence), or the agent would need to have an e-dealing licence and the conveyancer would have to be associated to the agent's firm. This effectively allows them to log on to Landonline as a member of the agent's firm to Certify and Sign," Mr Usherwood says.

Regardless of how the conveyancer sets up the licence, it's critical to consider your Digital Certificate obligations and security. Everyone who uses Landonline must have their own Digital Certificate. The Digital Certificate is used to authenticate that the person logging onto Landonline is the person who is authorised to use it. Every Landonline user has an individual Landonline profile and has provided credentials such as proof of identify when they signed up. It's vitally important that the owner of the Digital Certificate keeps their Digital Certificate secure, under their own control and never shares their Digital Certificate passphrase or Landonline password with anyone (refer to the Digital Certificate Terms and Conditions and User Obligations.

Mr Whitcombe says as well as maintaining the security of the Digital Certificate, and ensuring that the Certify and Sign responsibility rests with the conveyancer, there are some other issues to think about when deciding how you want to make use of an e-dealing service provider.

"You need to think about how you would maintain client confidentiality. Remember that everyone associated with an e-dealing licence can see work being done under that licence – so all law firms linked to the same search agent's licence can see all instruments prepared against that licence. And, of course, all the staff within a search agent who are linked to a law firm's licence can see all the work being done under that licence."

Choosing the option of linking your Digital Certificate with a search agent's licence also means you need to think about how you would provide the other law firms involved in a transaction with an acceptable undertaking to release documents on settlement, given that the control of this involves a third party – the agent, Mr Whitcombe says.

"From the client's point of view, it would mean the dealing has been done through a third party rather than through your direct control, which might raise issues for them."

Mr Whitcombe also said solicitors retain responsibility for ensuring the supporting documentation is kept to meet Landonline compliance requirements.