Electronic conveyancing FAQs
Frequently asked questions about the electronic conveyancing regulatory guideline
In Victoria, all conveyancing transactions must take place electronically, with some minor exceptions. Our regulatory guideline sets out our specific expectations of you and your practice when conducting electronic conveyancing (eConveyancing). These FAQs answer some common questions received about the Electronic Conveyancing Regulatory Guideline.
If you have any further questions about the guideline please contact us at trustgroup@Isbc.vic.gov.au
If you or your law practice need support in relation to your trust account obligations please contact the LIV Trust Consulting Service firstname.lastname@example.org
The changes to legal services in the area of conveyancing required a regulatory response to assist the profession in understanding how to meet their professional obligations. The guide does not create any amendments or additions to the current Uniform Law or Rules. It is a direction intended to provide clarification of how to interpret the existing legislation when dealing with funds relating to eConveyancing.
The property and conveyancing laws that govern each of the States are distinctly different and each State has interpreted the Uniform Law with reference to these differences. We have worked in close consultation with NSW in reaching our conclusions.
If your law practice intends to undertake eConveyancing work on a regular basis, you should have a general trust account to ensure that client’s funds are afforded the best protection possible. This direction allows the most rigorous oversight of the funds as it takes place under the Uniform Law and allows consumers clear pathways for redress.
The guide provides the alternative options for law practices who do not want to open a trust account. As the funds are considered trust money, your law practice requires a principal holding a practicing certificate with trust authorisation.
You can find more information about how to apply for a practicing certificate with trust here
If you need more information about how you deal with trust money please refer to our trust information
The Uniform Law is unambiguous that trust money is money received in the course of providing legal services. The definition of legal services is broad. When considering what may be classified as legal services in relation to eConveyancing, you may be assisted by understanding that the following work is generally considered to be legal services:
- Settlement Instructions including pre-checking of all settlement documents prior to a settlement
- Settlement Attendance including checking of all settlement documents collected at settlement
- Client liaising as to any issue or problems either identified prior to or at settlement in relation to documents
- Receiving Cheque directions to draw funds for settlement
- Arrange for payment of settlement funds required for settlement
- From completed settlement attending to the assessment of stamp duty and payment
- From completed settlement attending to the registration and payment of documents collected at settlement
Although there is no statutory prohibition in your client depositing into an ELNO, you need to advise your client that the money will not have the protections in the Uniform Law. This would mean that the funds would not be covered by the fidelity fund if a claim was made.
No. It is the responsibility of the principal of the law practice to ensure that their employees are appropriately qualified to undertake e-Conveyancing work. The form of the training your employees undertake is not mandated but, if concerns were raised, we would expect that you will be able to support the position that your employees are suitably competent by reference to their experience or the completion of recognised and relevant education.
The emergence of ENLO source accounts to facilitate eConveyancing transactions required us to consider what role the Uniform Law has in dealing with source accounts and whether the protections that exist for trust money could be applied to funds deposited into ENLO accounts. This guide was published in August 2020. If you have previously taken action that is contrary to this direction prior to this date we will take that into consideration if concerns were raised about your actions.
Yes but only on the same conditions that are detailed in the guide.
No. A law practice cannot charge professional legal fees, as the use of the trust account is not in itself considered legal work. The law practice may be able to charge a reasonable administrative fee, properly disclosed, and passed on as a disbursement.