Mortgagee's authorisation and instruction to lodge new mortgages for registration

The landowner-mortgagor's lawyer or conveyancer often certifies a new mortgage on behalf of the mortgagee as well as the mortgagor, or a discharge of an existing mortgage on behalf of the mortgagee. This is fine providing the certifying lawyer or conveyancer has been properly instructed by the mortgagee, and holds evidence of that.

It is not sufficient for the mortgagor's lawyer or conveyancer to rely on instructions from the mortgagee's solicitor unless that solicitor is acting as an authorised signatory or under a written authority such as a power of attorney that includes specific power to issue such instructions on the mortgagee's behalf.

Before certifying a new electronic mortgage or an electronic discharge on behalf of the mortgagee, a lawyer or conveyancer must ensure he or she holds the authority and instruction to do so, from:

The mortgagee directly (e.g. using the NZLS personal or corporate Authority and Instructions (A&I) forms, or an institutional mortgagee's discharge instrument or instruction letter as suggested in Parts "P" and "Q" of the NZLS e-dealing Guidelines), or
An authorised signatory (in terms of section 180 of the Companies Act 1993) or a person with written authority or power of attorney from the mortgagee giving them power to issue mortgage instructions on the mortgagee's behalf.

If the mortgagee chooses not to instruct the landowner-mortgagor's lawyer or conveyancer, then the mortgagee's own lawyer or conveyancer can certify on behalf of the mortgagee in a multi-party e-dealing.

Removal of caveats, notices of claim, charges and other interests

A transfer instrument is often preceded in an e-dealing by a withdrawal of caveat or notice of claim, discharge of a statutory land charge, or a removal of some other matter, so the transferor can pass clear title. If the transferor's lawyer or conveyancer certifies the withdrawal, discharge or removal, he or she must hold evidence of authority and instruction to the same standard as is required for a discharge of mortgage.

In other words, the certifying lawyer or conveyancer must hold an A&I form in one of the forms published by the NZLS (or equivalent) in the case of a 'private' caveator, claimant, chargeholder or other interest-holder. However, if a caveator or chargeholder is an institutional chargeholder, the authority may be a paper withdrawal or discharge or other evidence of authority as specified in Part "Q" of the NZLS e-dealing Guidelines.

The authority must be given directly to the certifying lawyer or conveyancer. It is not sufficient for the transferor's lawyer or conveyancer to rely on instructions from the caveator or chargeholder's solicitor unless that solicitor is acting under a written authority to provide such instructions. If the caveator or chargeholder chooses not to instruct the transferor's lawyer or conveyancer then their own solicitor can certify on their behalf in a multi-party e-dealing.

Court orders

If a court has ordered the removal of a caveat, notice of claim or a charge, then the sealed order will be adequate evidence to support a practitioner's certification of the relevant discharge instrument.

By contrast, a court order vesting land whether by the High Court, Mâori Land Court or some other court of competent jurisdiction cannot be registered or effected by transfer via the e-dealing system. For legal reasons, a vesting order cannot be lodged electronically and must instead be lodged manually as a paper document.

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Posted: 4 Dec 2008