Land Title Documents
This file last saved 28 November, 2022 11:57
- The Land Act 1994 and the Land Title Act 1994 have specific eligibility criteria which, as a JP(Qual), you fulfil. You must NOT be a party to the document.
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The Mortgage Witness Certificate/Checklist is NOT A REGISTRY FORM, even if the declaration is grafted into a Registry Form 20. Lenders (mortgagees) are now obliged under law to take reasonable steps to ascertain the true identify of their borrowers - eg 100 points of ID and MUST complile awritten record of the steps taken to identify borrowers. See below for alternative document from JP Branch.
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There is a mandatory requirement for the signatory to prove their identity with prescribed proof of identity documents. While the wording in the Act varies, it it is good practice to require at least one photographic form of identity and a secondary form such as the Medicare card.
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Both Acts impose the requirement to ensure that the person signing is entitled to do so - that is, that they are the holder of the relevant interest in the land and they understand the nature and effect of the document.
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All three Acts require you to print your full name on the document where you sign as a witness. Initials are not acceptable.
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If you are not satisfied that the signatory has the capacity to sign the document you should refuse to witness it.
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Do NOT use or witness any Titles Registry forms where correction fluid or correction tape has been used.
- These are approved forms under the Land Act 1994, Land Title Act 1994 and Water Act 2000.
- Forms under the Land Act 1994 relate to non-freehold land titles such as State leasehold land and reserves and unallocated State land.
- Forms under the Land Title Act 1994 (LTA) relate to freehold land titles, while documents under the Water Act 2000 relate to water allocation titles.
- These Acts have specific requirements that you must satisfy when you witness forms which they cover, particularly in relation to the transfer of ownership and mortgage-related forms such as Form 1 - Transfer and a National Mortgage Form.
- These forms have eligibility criteria which as a JP(Qual), you fulfil. They impose a strict onus on you to take reasonable steps to verify the identify of the person signing the form and ensure they are entitled to do so - that is, they are the holder of the relevant interest in the property (e.g. they are the registered owner or about to become the registered owner), and by implication, they understand the nature and effect of the document they are signing.
- You are required to print your full name on the Titles Registry Forms where you sign it as a witness. Your initials are not acceptable. If you do not provide your full name, the Justices of the Peace Branch (JP Branch) may disclose your full name to relevant third parties in order to verify the validity of the document(s) you have certified or witnessed.
- In other respects the forms coming under these acts must be witnessed in accordance with the usual rules, such as ensuring the signatory signs in the presence of the witness and the witness is not a party to the transaction covered by the document.
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The legislative requirements are spelled out in the following extract:
Section 162 of the Land Title Act 1994
162 Obligations of witness for individual
(1) A person who witnesses an instrument executed by an individual must -
a. first take reasonable steps to verify the identity of individual and ensure the individual is the person entitled to sign the instrument; and
b. have the individual execute the instrument in the presence of the person; and
c. not be a party to the instrument.
(3) The person must, for 7 years after the person witnesses the signing of the instrument-
a. keep a written record of the steps taken under sub-section (1)(a).Note: Section 173 of the Water Act 2000 provides that section 162 of the Land Title Act 1994 also applies to documents under the Water Act 2000. Section 311 of the Land Act 1994 contains provisions similar to Section 162 of the Land Title Act 1944.
The Registrar of Titles can also request to inspect a copy of your written record for a period up to 7 years after witnessing. Failure to comply with a requests without reasonable excuse carries a maxiumum penalty of 20 penalty units.
proof of ownership (supporting documents)
- Generally, a person selling or refinancing a property is the registered owner. To prove that they are the registered owner and are entitled to sign, the person is to provide one of the following documents in relation to the property:
- a local government rates notice showing ownership;
- a recently issued current title search statement showing their name;
- a recently issued registration confirmation statement showing their name;
- a current certificate of title (if one exists) showning their name; and/or
- a utilities notice, providing it include the lot and survey plan reference, not just the street address.
- A new purchase presenting a transfer and/or mortgage form for witnessing may not be able to provide the supporting evidence noted above, but should provide a copy of the contract of sale or a letter from a solicitor that includes the real property description, confirming their entitlement to sign the form(s).
- You may use electronically downloaded evidence where it is evident that it is legitimate. This may include observing the client use the telephone to request a scanned copy of the document from a solicitor.
- Document must show the real property description:
- local government rates notice
- title search
- recent registration confirmation
- current certificate of title
- utilities notice
- Technical Bulletin 09/09 advises that JPs and CDecs are NOT to witness land titles documents where the titles registry form is incomplete or the client has not provided adequate supporting documentation. A copy of the Inability to Sign form is here. This is not the same hyperlink as on the Attorney General site.
- Technical Bulletin 05/12 advises that witnesses are NOT authorised to witness alterations or minor corrections to Titles Registry Form 20 (Additional Page).
- Technical Bulletin 02/14 advises that a document is valid if executed in a way permitted by law. A document can be validly executed by a person who holds a specified position within a company (such as a director), or an employee who has been authorised in writing by the Board of the company to execute on its behalf.
- There is no need to witness the signature of a person who is signing on behalf of a company if that person fulfils the conditions above. An execution for a company must include the signatory's designation (eg, Director), the full company name and the company's ACN.
- If the client insists on having a company execution witnessed, it does not make the document invalid so long as the procedures for land title documents are followed.
- The JP(Qual) who witnesses a Form 2 - Mortgage, may be presented with an addition document (usually called a mortgagor witness certificate) drafted by the lender (mortgagee).
- Such certificates usually ask the witness to certify the identify of the signatory (mortgagor) and to provide their own personal information such as driver licence details, home address or telephone number. You are not required to supply any information of a personal nature, and should provide contact details of the JP Branch.
- There is no statutory obligation for a JP or C.dec to complete a certificate, statment or declaration for, provided by a mortgagee in association with a land registry instrument. It is a matter for each individual JP or C.Dec as towhether or not they complete such forms if provided, particuarly where the witness is requested to provide their own personal information such as home address or driver licence details.
- You may use the mortgagor witnessing certificate provided by the Department of Justice and Attorney-General which does not require the personal information of the JP(Qual) and has a disclaimer confirming the JP has witness the Titles Registry form and completed an ID check in line with their section 162 obligations and not as an agent for the lender undersection 11A. That is, it makes clear the JP is NOT performing any due diligence role on behalf of the lender.
- Have the signatory provide proof of identity.
- Ensure that the signatory holds the relevant interest in the land.
- Question the signatory to confirm that they understand the nature and effect of the document to be signed. If you're not satisfied that the signatory has the capacity to sign the document, you should refuse to witness it.
- Have the signatory sign the document in front of you.
- Place your signature and FULL name on the document. Insert your registration number but do NOT place your seal on the document.
- The Duties of Justices of the Peace (Qualified) Handbook, Queensland Government - June 2017 Section 4.11
- Land Act (Queensland) 1994
- Land Title Act (Queensland) 1994
- Technical Bulletins as above
Eligibility Provisions
Defining Titles Registry Forms
Why Titles Registry Forms are treated differently to other documents
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Transaction |
Party |
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Transfer |
Transferor (Seller) |
Transferee (Buyer) Copy of contract or solicitor's letter showing the real property description. |
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Mortgage by Current Owner |
Mortgagee (Lender) Not usually relevant to JP/CDec witnessing in the community |
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Mortgage by Incoming Owner |
Copy of contract or solicitor's letter showing the real property description. |
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