INSTRUMENT CERTIFICATION

A key feature of NECS, and of all electronic conveyancing systems throughout the world, is that in the main transacting parties will not be signing the registry instruments necessary to effect registration of their interests.  Instead, transacting parties will give their authority to the Subscribers representing them in completing transactions using NECS to sign registry instruments on their behalf.  Subscribers will be required to use a Certifier to certify and sign each registry instrument.

There are to be up to five specific certifications given by a Certifier prior to a registry instrument being able to be signed ready for lodgment with the Land Registry.  Whether all five certifications are necessary in any particular instance will depend on the circumstances of the transaction and the nature of the instrument.  Two of the certifications are to be mandatory in all circumstances for all instruments.

The five certifications have been endorsed by the National Project Team, subject to review of their final wording.

The two certifications mandatory in all circumstances for all instruments are to be certifications as to:

• correctness of all information contained in the instrument

• compliance of the instrument with all legal requirements.

These two mandatory certifications are to be included as warranties in the Participation Rules every Subscriber and Certifier will be required to commit to before being registered to use NECS.  The proposed wording of these warranties is to be along the lines of: 

“Within the Certifier’s knowledge and diligent enquiry, all of the information contained in the registry instrument is correct in the context of the transaction and the instrument complies with all relevant legislation and the Land Registry’s prescribed requirements.”

The effect of the Participation Rules will be that every time a Certifier signs a registry instrument they will be giving these warranties as to the correctness and compliance of the instrument and they can be held responsible for a false certification in the event that the instrument is later found to have been incorrect and/or non-compliant.

The three further certifications needing to be given depending upon the circumstances of the transaction and the nature of the instrument are to be certifications as to:

• identity of the transacting party having been verified by the Subscriber, with wording along the lines of:

“The Subscriber has properly carried out and securely retained records of identity verification as prescribed by the Land Registry.”

• authority of the Subscriber to represent the transacting party, with wording along the lines of:

“The Subscriber holds a properly completed and signed Client Authorisation for the transaction as prescribed by the Land Registry.”

• support for the instrument having been obtained and found to be in order, with wording along the lines of:

“The Subscriber has obtained, verified, properly considered and securely retained originals or certified copies of all supporting evidence for the transaction and instrument as prescribed by the Land Registry.”

These certification statements will be presented to the Certifier on the registry instrument when relevant for affirmation by the Certifier prior to being able to sign the instrument.  It is expected that Certifiers will diligently make all necessary enquiries to ascertain the truth of each certification statement, and of the correctness and compliance warranties applying to all instrument signings, before affirming the certifications and signing the instrument.

There will be circumstances when each of these certifications is not required.  For example, a Principal Subscriber acting for themself as transacting party will not need to conduct an identity verification or obtain a Client Authorisation.  Many instruments will not require supporting evidence to be obtained, scrutinised and retained.

The objective with instrument certifications is to make them as straightforward as possible without reducing their importance in securing confidence in using NECS and in protecting the integrity of the Land Registries’ Torrens Title Registers.  To this end, it is considered essential that the certification statements should be constructed with the following characteristics:

• common English language usage (ie no big or unusual words, words with a strict legal meaning, or acronyms)
• simplest possible expression (ie straightforward expression using the least possible words)
• not more than 25 words in length
• consistent phrasing and orientation
• oriented to being affirmed as true.

If you have a view about the wording of the proposed certifications, either the warranties in the Participation Rules or the statements to be affirmed on registry instruments, please let us know here.

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