Summer services update
Establishing the identity of your client is an essential safeguard against identity and property fraud in conveyancing transactions. The certifying practitioner is ultimately responsible for ensuring reasonable steps have been taken to confirm the identity of the client.
Here’s what practitioners need to know about their certification obligations and how to satisfy the requirements for identity.
Practitioners' certification obligations
When lodging an electronic instrument practitioners must certify, in accordance with 7(3)(b) and (d) of the Land Transfer Regulations 2018 (the Regulations), that they:
- have taken reasonable steps to confirm the identity of the party, 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 above certifications, the requirements relating to identity set out in the Authority and Identity Requirements for E-Dealing Standard 2024 – LINZ S 01308 (the Standard) must be satisfied. Clauses 8 to 17 of the Authority and Identity Requirements for E-Dealing Guideline 2024 – LINZ OP 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 confirming identity
The following is a high-level summary of the requirements for confirming identity. For the full details, you should read the Standard and Guideline.
Confirmation of identity – clauses 9-11 of the Guideline
The Guideline provides guidance on how confirmation of identity may be completed for new clients (clause 9), existing clients (clause 10), and non-client parties (clause 11). These are defined in clause 8 of the Guideline.
For private corporates, you must confirm the identity of those persons who are giving authority on behalf of the private corporate. This applies even when 2 or more directors have signed the A&I form.
Delegates – clause 12 of the Guideline
Practitioners may rely on a delegate to confirm the client’s identity and witness A&I forms. Clause 12 provides guidance on:
- high risk transactions involving a delegate (clause 12.1)
- who can act as a delegate (clause 12.2)
- preferred delegates when the client is located in New Zealand or overseas (clauses 12.3 and 12.4)
- alternative delegates (clause 12.5).
When relying on an alternative delegate, the practitioner must record a file note of the reasonable steps they took to satisfy themselves the delegate meets the requirements in clause 12.2 of the Guideline. The file note should be retained with the A&I form as evidence in support of the practitioner’s certifications under s30(1) of the Act.
If a practitioner is uncertain about whether they can reasonably rely on a delegate, the practitioner or trusted colleague can confirm identity and witness the A&I form either face to face or via AVL (see clauses 9 and 10).
Acceptable photo ID – clause 13 of the Guideline
Clause 13 provides guidance on preferred forms of ID, alternative forms of ID, overseas ID, current and expired ID, and what to do when no ID is available.
For the avoidance of doubt, a Kiwi Access Card (18+) is not an acceptable photo ID.
Statutory declaration as to identity – clause 14 of the Guideline
If your client’s identity cannot be confirmed using acceptable photo ID, their identity may be confirmed by statutory declaration. Clauses 14.1 and 14.2 provides guidance on who can give a statutory declaration and what should be included in the statutory declaration. A recommended statutory declaration form is provided in Appendix A of the Guideline.
Connecting the client to the property – clause 15 of the Guideline
Clause 15 confirms the Standard requirement to obtain a connecting document in certain situations, and the types of connecting documents that may be obtained.
If the practitioner or their trusted colleague has personal knowledge of the client’s ownership of the property the practitioner may record a file note confirming that knowledge, in lieu of obtaining a connecting document as set out in clause 15.2.
Reconciling name discrepancies – clause 16 of the Guideline
Clause 16 confirms the Standard requirement to reconcile name discrepancies and the types of documents that must be obtained to reconcile the discrepancy.
Consideration may also be given as to whether an owner’s name on a record of title should be updated. Further guidance on how to apply to correct or change a name can be found in the Applications to Correct or Change Names in the Register Guideline 2018.
Applications to Correct or Change Names in the Register Guideline 2018 – LINZ G20780
High risk transactions – clause 17 of the Guideline
Clause 17 confirms the Standard requirement to make further enquiries to confirm the veracity of the transaction and record a file note of the additional steps taken to confirm the identity of the client for high risk transactions. Examples of what those reasonable steps may be are included at clauses 17.1 and 17.2.
The file note should be retained with the A&I form as evidence in support of their certifications under section 30(1) of the Act.
Property Law Section Guidelines
Guideline L of the PLS Guidelines provides further guidance on client identity including the requirement to comply with rules 2.5 and 2.6 of Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.