There are always a number of documents that need to be signed when buying or selling a property. The signing of the contract is only the first legal step in any property transaction.
Throughout a typical conveyance, Buyers will be responsible for signing at least transfer duty concession or declaration forms and mortgage documents and Sellers will be responsible for signing the transfer of land documents. These are formal legal documents that need to be signed witnessed by a qualified witness.
In Queensland, a qualified witness means a justice of the peace, commissioner for declarations or Australian legal practitioner. However, the definition of a qualified witness changes considerably when the Buyer or Seller is overseas.
At Preston Law, we often encounter Buyers or Sellers who are traveling for work or holidaying overseas at the time of their sale or purchase. This can significantly complicate the process for signing and witnessing the documents required to complete the conveyancing process.
- The Queensland Land Titles Registrar requires that an instrument or document executed by an individual outside Australia is witnessed by:
- An Australian Consular Officer or authorized employee of the Commonwealth; or
- A competent officer as defined under the Defence Force Regulation 1952 (Cth); or
- A notary public; or
- An Australian Legal Practitioner; or
- An Australian Lawyer; or
- A New Zealand Lawyers (i.e. a solicitor, barrister or barrister and solicitor); or
- Another person approved by the Registrar
Part 60 of the Land Title Practice Manual (Queensland) explains the process for having legal documents witnessed outside Australia. There are different forms for different types of qualified witnesses and a detailed process for completing the Overseas Witnessing forms.
Where possible we always encourage our clients to sign all documents in Australia prior to traveling overseas. Whilst Queensland Justices of the Peace and Commissioners for Declarations volunteer to serve the public by signing documents that need a qualified witness, an Australian Consulate Officer of Notary Public can charge in the hundreds of dollars. Original copies of all the above documents then need to be sent back to Australia prior to the settlement date, which can then result in costly overseas postal fees.
The Overseas Witnessing requirements also have a number of very particular rules. It is not uncommon to receive documents back that have been incorrectly witnesses. Examples of incorrectly witnessed documents can include where the handwriting of the witnessing officer changes halfway through the form (because a secretary or assistance has completed part of the document), or where the witnessing officer has not witnessed a sufficient amount of ID to satisfy the registry requirements – a witnessing officer is required to site and certify copies of at least one Australian Passport or foreign passport, plus Australian drivers licence or Photo Card, plus change of name or marriage certificate if necessary for persons who are Australian citizens or residents.
It is not uncommon for clients to be traveling or visiting overseas when completing their conveyancing sale or purchase. Where we are told that a client will be traveling overseas, we will make every effort to ensure that the documents can be signed in Australia. When we know that a client is going to be overseas, we can generally rewire the contract to work around the inconvenience of having particular documents witnessed overseas. It is important that clients notify their Conveyancer as early as possible if you are intending to be overseas during your conveyancing sale or purchase.
If you do need any help with the with any property transactions, Cairns Conveyancing Solicitors offers a range of services. We are based in Cairns but offer our services all over Queensland. Please call 07 4052 0777 for all your conveyancing needs.