All land transactions must be properly authorised by or on behalf of the landowner and other relevant parties. This is an essential safeguard to ensure that only bona fide (legitimate) transactions are lodged for registration.
Here’s what practitioners need to know about their certification obligations and how to satisfy the requirements for client authority and legal capacity.
Practitioners' certification obligations
When lodging an electronic instrument practitioners must certify, under regulation 7(3)(a) and (d) of the Land Transfer Regulations 2018 (the Regulations), that they:
- have authority to act for the party and the party has the legal capacity to give them authority, and
- hold evidence showing the truth of the above certification.
Practitioners must retain that evidence and produce it if the dealing is selected for compliance review in accordance with section 30 of the Land Transfer Act 2017 (the Act).
Before making the certifications, the requirements relating to client authority and legal capacity set out in the Authority and Identity Requirements for E-Dealing Standard 2024 – LINZ S 01308 (the Standard) must be satisfied. Clauses 2 to 6 of the Authority and Identity Requirements for E-Dealing Guideline 2024 – LINZ G 01309 (the Guideline) has further guidance about how to satisfy those requirements.
- Authority and Identity Requirements for E-Dealing Standard 2024 – LINZ S 01308
- Authority and Identity Requirements for E-Dealing Guideline 2024 – LINZ OP G 01309
- E-Dealing compliance monitoring
Summary of the requirements for authority and capacity
The following summarises our guidance on how to satisfy the requirements for client authority and legal capacity. For the full details, you should refer to the Standard and Guideline. Additional guidance has also been provided to answer common questions and concerns.
Who gives authority – clause 2.1 of the guideline
Authority must be obtained from the landowner and every party to the transaction. Written authority should be obtained from the party personally, or from the party’s appointed representative.
Clauses 2.1.1 and 2.1.2 provides guidance on how to obtain authority from private corporates and public corporates (which are defined on pages 8 and 9 of the Guideline).
Authority under a power of attorney – clause 2.2 of the Guideline
Clause 2.2 provides guidance on what is required for a power of attorney to have legal effect, the steps practitioners must take to confirm the power of attorney is operative and confers the necessary power to authorise the transaction, and additional checks that should be made if the practitioner did not act when the power of attorney was granted.
A power of attorney for a company must be given by the company under s181 of the Companies Act 1993. It must not be given by the directors of the company in their personal capacity.
A trustee may delegate, by power of attorney, all or any of the trustee’s powers or functions under s70 of the Trusts Act 2019 when they are outside of NZ, temporarily unable to be contacted, or temporarily incapacitated. By contrast, an attorney appointed under an enduring power of attorney in relation to property represents the donor in their personal capacity only and does not have powers to act in a trustee capacity. An enduring power of attorney can only be used to remove a trustee in the limited circumstances described in s92(1)(c) of the Trusts Act 2019.
Capacity – clause 3 of the Guideline
Your client must have the necessary legal capacity to sign the A&I form and enter into the transaction. Clauses 3.1 and 3.2 provide guidance on the legal capacity of individuals and corporates.
A&I forms and other forms of authority – clause 4 of the Guideline
A signed authority and instruction form (A&I form) is the accepted method for obtaining authority. Other forms of authority are also acceptable, as set out in clause 4.
There are three types of A&I forms:
- Private Individual
- Private Corporate - e.g. a non-publicly listed company or an incorporated society
- Public Corporate – e.g. a publicly listed company, local authority, or government department.
The forms are unique, so it is important to use the correct one. If you are unsure whether the party is a private or public corporate, you should use the Private Corporate A&I form.
The Instrument types page lists those instruments that are authorised by way of an A&I form.
A&I forms can be created in Landonline. Alternatively, you can download the A&I form templates from our website and, if needed, tailor them to suit your office templates so long as the content of the form is not reduced.
Vendor A&I forms and nominations
Vendor A&I forms should name the purchaser and include the words ‘and/or nominee’ to show that a nomination may occur. If a nomination by the purchaser then takes place, you should attach to the vendor A&I form a clear paper trail evidencing the nomination that has occurred, for example a copy of a letter or email confirming the nomination or Sale Notice noting the nominee.
Faxed or emailed copies of A&I forms
Best practice is to wait until the original signed A&I form and supporting documentation is received from the client or delegate witness before certifying electronic instruments. Where necessary, a faxed or emailed copy of the A&I form is sufficient.
A&I forms - expiry
A signed A&I form does not expire and there is no limitation on how long you can rely on the A&I form. In clause 4 of the A&I form, the client irrevocably authorises and instructs the practitioner or their firm to register the instruments as an e-dealing.
However, regardless of whether a client has signed an A&I form (or some other form of authority) the practitioner should always consider whether the client’s authority is still valid at the time they come to certify the related instrument. It is up to the practitioner to determine whether it is still appropriate to certify that they have authority considering the client’s original instructions and any relevant issues or change in circumstances since the A&I form was signed, or whether it is better to have the client sign a new A&I form.
Witnessing A&I forms – clause 5 of the Guideline
A witness must be aged 18 years or over, be independent of the client, and not be a party to the transaction. Clause 5 has further guidance on what it means to be independent of the client.
An A&I form may be signed remotely and witnessed by a practitioner or their trusted colleague using AVL. The practitioner or trusted colleague must also confirm the identity of the party following the guidance in clauses 9.3 or 10.3 of the Guideline.
Electronic signatures – clause 6 of the Guideline
An A&I form can be signed and witnessed using an electronic signature if the signature is compliant with sections 226, 227 and 228(1) of the Contract and Commercial Law Act 2017. See clause 6 for further guidance.
When relying on an electronic signature, the practitioner must retain the product’s digital signing log as evidence together with the A&I form.
For more information on:
- other documents that can be signed using an electronic signature, and
- electronic signing systems,
see our electronic signatures for A&I forms and other documents page.
Electronic signatures for A&I forms and other documents
Property Law Section Guidelines
Part 6 of the PLS Guidelines provides further guidance on: the completion of A&I forms (see “K”), format of A&I forms (see “M”), execution of A&I forms by attorney (see “N”), capacity including minors, mental capacity, bankruptcy, corporates and change in trustees (see “O”), retention of authorities (see “P”), and more.