I know about the mandate and I want to go straight to the Instrument Specific Exemptions List
The eConveyancing mandate, which commenced on 20 February 2023, requires that some titles instruments, known as ‘required instruments’ must be lodged using eConveyancing, unless a valid exemption applies.
The Mandate, introduced by the Land Title Regulation 2022, applies to all industry professionals and corporate entities that are lodging a required instrument dealing with freehold land.
eConveyancing and the Background to the Mandate
eConveyancing allows titles instruments to be digitally prepared, signed, settled, and lodged, providing greater efficiencies over paper and manual processes and lodgements. Other benefits include immediate confirmation of lodgement and faster registrations. For more information about eConveyancing click here.
Queensland has been using eConveyancing since 2013 and since then it has become the dominant platform through which titles instruments are lodged by industry professionals. There are two Electronic Lodgment Network Operators (ELNOs) in Queensland, Property Exchange Australia Limited (PEXA), and Sympli Australia Pty Ltd (Sympli).
Since 2013, the number and scope of instruments that are available to be lodged using eConveyancing (available instruments) has expanded considerably and continues to grow as Titles Queensland in conjunction with PEXA, Sympli and the Queensland Revenue Office (QRO) continue to work towards making more instruments available through eConveyancing. For a full list of available instruments click here.
The Land Title Regulation 2022, which commenced on 20 February 2023, mandated the use of eConveyancing for the lodgement of certain instruments (required instruments) unless an exemption applies.
Available Instruments vs Required (mandated) Instruments – what’s the difference?
The term ‘available instruments’ refers to all instruments which are capable of lodgement using eConveyancing. while the term ‘required instruments’ refers only to those instruments which are required to be lodged using eConveyancing (i.e. they are mandated) after the eConveyancing mandate came into effect on 20 February 2023, unless an exemption applies.
In addition, not all available instruments are required instruments under the mandate, so there are some instruments which can (and may) be lodged using eConveyancing, but are not captured by the mandate, and therefore do not have to be lodged using eConveyancing.
A list of available instruments can be found on the Titles Queensland website on the eConveyancing page and a list of required instruments is provided below.
Required (mandated) Instruments
The following instruments and documents are required instruments:
- an instrument of transfer for a lot (Form 1);
- an instrument of mortgage for a lot (NMF);
- an instrument releasing a mortgage of a lot (Form 3);
- a caveat for a lot (Form 11);
- a request to withdraw a caveat lodged over a lot (Form 14);
- a priority notice for a lot (PNN);
- a request to extend a priority notice over a lot (PNE);
- a request to withdraw a priority notice over a lot (PNW);
- an application to be registered as a personal representative for a registered owner of a lot who has died (only Form 5 is currently available).
Exemptions
A required instrument under the eConveyancing mandate does not need to be lodged using eConveyancing if it meets any of the following criteria:
- It is covered under one of the ‘General Exemptions’ to the Mandate listed below;
- It meets one of the applicable ‘Instrument Specific Exemptions’ listed below;
- The instrument was executed by any party prior to 20 February 2023.
General Exemptions
General Exemptions are those exemptions that apply to all the instruments captured by the eConveyancing mandate. A list of General Exemptions can be found below:
A party to the instrument, who is a natural person (i.e. not a company etc.), is not a Subscriber to an Electronic Lodgment Network Operator (i.e. not a subscriber to PEXA or Sympli) and is not represented by an Australian legal practitioner or an incorporated legal practice.
The Electronic Lodgment Network and/or Titles Queensland system does not have the functionality to complete the transaction.
Example: Although a Form 1 – Transfer is a required instrument; it is not currently possible to lodge a transfer by a third party through eConveyancing.
When the eConveyancing lodgement was attempted, circumstances beyond the lodger’s control prevented the lodgement from proceeding.
Example: Where the lodger experiences internet access issues for the entire day, or the Electronic Lodgment Network was unavailable for use for the entire day.
The instrument is required to be lodged with another instrument that cannot be lodged using eConveyancing
Example: Where a transfer must be lodged with a plan of survey and the plan of survey cannot be lodged using eConveyancing
The instrument is required to be lodged with another instrument which includes a party who is an unrepresented person.
Example: Where a release of mortgage must be lodged in combination with a transfer and the mortgagee releasing the mortgage is an unrepresented individual.
The instrument:
a) replaces an instrument that was lodged using eConveyancing and subsequently rejected or withdrawn under section 157 or section 159 of the Land Title Act 1994; and
b) for which an associated financial transaction has been completed.
Example: A Form 1 – Transfer is lodged, and the purchase price has already been paid to the seller. Prior to registration of the transfer, the lodger identifies an error and withdraws the transfer for it to be re-lodged with the correct information. The re-lodged transfer, although a transfer is a required instrument, will be acceptable in paper form.
The instrument(s) being lodged give effect to a transaction that is not an ‘ELN lodgement’ or ‘ELN transfer’ within the meaning of the Duties Act 2001 (Qld) section 156D.
Refer to part [62-6022] of the Land Title Practice Manual for a further explanation.
Instrument Specific Exclusions
Instrument Specific Exemptions are those exemptions that are specific to the type of instrument being lodged e.g. Form 1 – Transfer.
Because no ELNO (PEXA or Sympli) presently has the functionality to allow for every possible variation that every instrument can be utilised for (in the way that a paper form would), an exemption (the functionality exemption) is provided for in the mandate for circumstances where the functionality to prepare, lodge or deposit the required instrument does not exist.
For example, some types of Form 1 – Transfer (e.g. Mortgagee exercising power of sale) cannot be processed through an ELN. Such transfers are therefore exempt from the mandate and are permitted to be lodged in paper form, provided a properly completed Exemption Request Form (ERF) accompanies the paper lodgement.
Below is a list of the Mandated instrument inclusions and exclusions:
1. Where a party to the transaction is the ‘Trustee of the Property of …., a Bankrupt’
2. Where the given name of one of the parties is greater than 30 characters, the total of all given names of one of the parties is greater than 60 characters, or where the family name of one of the parties is greater than 60 characters.
3. Where an organisation has a name greater than 255 characters;
4. Any part-title dealings e.g. part of a multi-lot title, or part of a multi-title lot e.g. timeshare;
5. Any instrument which is not an ELN Lodgement or ELN Transfer (under a Relevant Transfer Agreement) as defined by the Duties Act 2001 (Qld) – for further information see the QRO website.
6. Where a Titles lodgement fee exemption applies with the exception of transfers pursuant to the Family Law Act 1975 (Cth) or where the State of Queensland (including a Queensland Government agency representing the State) is acquiring an interest, or releasing or surrendering an interest (other than a fee simple interest), or depositing or removing an administrative advice.
7. Where a registered owner has a name suffix
8. Where a registered owner is recorded as ‘minor’
9. Where a party to an instrument is a deregistered company
10. Where the title is partially cancelled
Inclusions
An instrument of transfer of a lot is able to be lodged using an ELN if no exclusions apply (refer to exclusions below or the functionality exclusions), and if it meets ALL of the following criteria:
1. The Lot being transferred is Fee Simple;
2. The Transfer will transfer all the lots on all the titles it will be lodged over. (Transfers of one lot on a multi-lot title cannot currently be lodged using an ELN. In addition, Transfer of part of a lot also cannot currently be lodged using an ELN);
3. Where both the transferee and the transferor (as applicable) are any of the following:
- Individuals (excluding minors and bankrupts);
- Charitable body
- Commonwealth government or body
- Co-operative
- Foreign company – unregistered;
- Incorporated Association;
- Local government or body;
- Non-government statutory entity;
- Other legal entity;
- Registered Australian body or foreign company;
- Registered company (deregistered companies not permitted);
- Registered company in external administration;
- Religious body;
- State of Queensland, only as transferee where no preceding agreement exists;
- Subdivisional body, only where the property is transferred to the named purchaser; and
- Trade Union.
4. Where the consideration is any of the following:
- Monetary;
- Gift;
- natural love and affection;
- retirement and appointment of a trustee;
- death and appointment of a trustee;
- discharge and appointment of a trustee;
- desire to change tenancy;
- agreement under the part VIIIAB Family Law Act 1975 (Cth);
- financial agreement under the part VIIIA of the Family Law Act 1975 (Cth);
- assumption of liability under mortgage;
- pursuant to a clause in the trust deed;
- pursuant to a Family Law Act 1975 (Cth) order;
- pursuant to the rules of intestacy (transferor must be a personal representative);
- pursuant to the terms of a will (transferor must be a personal representative).
Exclusions
An instrument of transfer of a lot is an instrument that will not be able to be lodged using an ELN if it meets ANY of the following criteria (list is not necessarily exhaustive):
1. Where the capacity of the transferor is other than trustee or personal representative e.g. Responsible entity or statutory trustee for sale etc (Transfers where the capacity of the transferor is other than trustee or personal representative currently cannot be lodged using an ELN).
2. Where the transferee has a capacity other than as trustee (all other capacities are excluded);
3. Transfer by third party e.g. mortgagee exercising power of sale;
4. Transfer of an interest e.g. lease or mortgage;
5. Transfer of part of the land;
6. Transfer by direction e.g. transfer with intermediate purchaser;
7. Transfer of other title types e.g. water allocations, state leasehold etc;
8. Transfers creating life estates;
9. Transfers where supporting evidence is required to be deposited other than the following:
- Transfers to trustees where the supporting evidence is evidence of a charitable trust
- Transfers to trustees where the supporting evidence is evidence of ministerial consent
- Transfer to local government not as trustee where the supporting evidence is a statutory declaration;
10. Transfers where the transferee is a foreign person and multiple lots are being transferred;
11. Transfers of a share of the property, where the transferor who will be remaining on title is changing their tenancy type or changing their share holding and is a non-foreign person but resides outside Australia;
12. Transfers of a share of the property where the transferor is a foreign person who will be remaining on the title and changing their tenancy type or share holding;
13. If any party that is not an individual, does not have a valid identifier (ACN, ABN and ARBN).
14. Where the transferee is to be recorded as a joint tenant, and one of the parties to that joint tenancy is an organisation;
15. One transfer over multiple titles where the tenancy and / or shares held by the registered owners differ across the titles, for example:
Title 1: Joint tenants and Title 2: Tenants in Common 1/2 each; or
Title 1: Tenants in common with shares of 1/3 and 2/3 and Title 2: Tenants in common with shares of 1/2 each
16. Where a party to the transaction does not have either a given name or a family name, for example “El Greco” or “Madonna”.
(Please note, these transactions can be processed in two transactions in the one workspace)
Inclusions
An instrument of mortgage for a lot is able to be lodged using an ELN if no exclusions apply (refer to exclusions below or the general exclusions), and if it meets ALL of the following criteria:
1. The mortgage will be lodged over a Fee Simple lot;
2. All of the registered owners are mortgagors
3. Where the instrument will mortgage all lots on all titles it will be lodged over. (Mortgages of one lot on a title that contains multiple lots cannot currently be lodged using an ELN).
4. Where both the mortgagor and the mortgagee (as applicable) are any of the following:
- Individuals (excluding minors and bankrupts)
- Charitable body
- Commonwealth government or body
- Co-operative
- Foreign company – unregistered
- Incorporated Association
- Local government or body (excluding as mortgagor)
- Non-government statutory entity
- Other legal entity
- Registered Australian body or foreign company
- Registered company (deregistered companies not permitted)
- Registered company in external administration
- Religious body
- State/Territory government or body
- Trade Union
Exclusions
The National Mortgage Form (NFM) is an instrument that will not be able to be lodged using an ELN if it meets ANY of the following criteria (list is not necessarily exhaustive):
1. Where the mortgagee has a capacity other than trustee or (all other capacities excluded).
2. Where the mortgagor has a capacity other than trustee or personal representative (all other capacities excluded).
3. Mortgages of an interest e.g. lease.
4. Where the mortgagee is to be recorded as a joint tenant, and one of the parties to that joint tenancy is an organisation.
Inclusions
A Form 3 will be required to be lodged using an ELN if it is not an excluded instrument (refer to exclusions below or the general exclusions), and if it meets ALL of the following criteria:
1. The release of mortgage will be lodged over a Fee Simple lot;
2. Where the instrument will release a mortgage from all lots on all titles that the mortgage is registered over;
3. Where the instrument of release releases the mortgage for all of the registered mortgagors for that mortgage.
Exclusions
A Form 3 is an instrument that will not be required to be lodged using an ELN if it meets ANY of the following criteria (list is not exhaustive):
1. Release of Mortgages of an interest e.g. lease.
2. Release of Mortgages where supporting evidence is required to be deposited
Inclusions
The Form 11 is an instrument which will be required to be lodged using an ELN if it meets ALL the following criteria:
1. The caveat will be lodged over a fee simple lot; and
2. The caveat will be lodged over all lots on the titles it will be lodged over; and
3. The interest being claimed, and grounds of claim (claim statement) are contained in the following table:
| Claim category | Interest being claimed | Claim statement (grounds of claim) and details supporting claim as necessary |
| Mortgage | An equitable interest as mortgagee of an estate in fee simple | The Caveator claims an interest as mortgagee pursuant to a clause in an agreement between the registered owner and the Caveator charging the property to secure to the Caveator the money therein stated. The clause number and agreement date are: |
| The Caveator claims an interest as mortgagee pursuant to an unregistered mortgage in registrable form, to secure the money therein stated, executed by the registered owner on | ||
| Purchase | An equitable interest as purchaser of an estate in fee simple | Pursuant to a contract/agreement between the registered owner as vendor and the Caveator as purchaser, dated |
Charge (All registered owners) | An equitable interest as chargee of an estate in fee simple | Pursuant to a clause in an agreement between the registered owner and the Caveator, whereby the registered owner agreed to charge all their interest in the land with payment of monies owing to the Caveator. The clause number and agreement date are: |
| Pursuant to an agreement between the registered owner and the Caveator, whereby the registered owner agreed to charge all their interest in the land with payment of monies owing to the Caveator, dated | ||
| Pursuant to a clause of that part of a written account application entitled ‘Deed of Guarantee and Indemnity’ between the registered owner and the Caveator by which the registered owner charged their interest in the land with payment of monies owning to the Caveator. The clause number and application date are: | ||
Charge (Not all registered owners) | An equitable interest as chargee of an estate in fee simple in the interest of <> | Pursuant to a clause in an agreement between the registered owner identified in the ‘Interest being claimed’ and the Caveator whereby the registered owner agreed to charge all their interest in the land with payment of monies owing to the Caveator. The clause number and agreement date are: |
| Pursuant to an agreement between the registered owner identified in the ‘Interest being claimed’ and the Caveator, whereby the registered owner agreed to charge all their interest in the land with payment of monies owing to the Caveator dated | ||
| Pursuant to a clause of that part of a written account application entitled “Deed of Guarantee and Indemnity” between the registered owner identified in the ‘Interest being claimed’ and the Caveator by which the registered owner charged their interest in the land with payment of monies owning to the Caveator. The clause number and application date are: | ||
| Constructive Trust | An equitable interest in the fee simple estate | Pursuant to a constructive and/or implied or resulting trust arising upon the financial and nonfinancial contributions of the Caveator to the acquisition, conservation and/or improvement of the property. |
Exclusions:
The Form 11 is an instrument that will not be required to be lodged using an ELN if it meets ANY of the following criteria (list is not exhaustive):
1. It is one of the types of caveats not required or unable to be lodged using an ELN, which include, but are not limited to:
- Registered owners caveats;
- Caveats including registered owners consents;
- Caveats requiring supporting evidence e.g. restraining order caveats; and
- Caveats lodged pursuant to section 74 of the Property Law Act 1974 (Qld)
2. If any of the affected parties (e.g. Mortgagee on title) hold their interest as a capacity (for example as Trustee).
3. If the Caveat is to allow an instrument to be registered, the receiving party cannot have a capacity.
4. If any of the parties to the instrument to which the Caveat does not apply, capacity (for example as Trustee).
5. Where the caveator is acting other than in their own capacity e.g. as trustee
Inclusions
The Form 14 – request to withdraw a caveat lodged over a lot is an instrument which is able to be lodged using an ELN if it meets ALL the following criteria:
1. The request to withdraw the caveat will be lodged over a Fee simple Lot.
2. The withdrawal will withdraw the caveat from all the lots on the titles it will be lodged over.
Exclusions
The Form 14 – request to withdraw a caveat lodged over a lot is an instrument that is not able to be lodged using an ELN if it meets ANY of the following criteria (list is not necessarily exhaustive):
1. Withdrawals of caveats requiring supporting evidence.
2. Where there are multiple caveators for the caveat being withdrawn and they are acting as trustees for different trusts.
Inclusions
The PNN – priority notice over a lot is an instrument which will be required to be lodged using an ELN if it meets ALL the following criteria:
1. The priority notice will be lodged over a Fee Simple lot including Fee Simple pursuant to the Southbank Corporation Act 1989.
2. The priority notice will be lodged over all lots on the titles it will be lodged over.
Exclusions
The PNN – priority notice over a lot is an instrument that will not be required to be lodged using an ELN if it meets ANY of the following criteria:
1. Water Allocation Titles
Inclusions
The PNE – request to extend a priority notice over a lot is an instrument which will be required to be lodged using an ELN if it meets ALL the following criteria:
1. The request to extend a priority notice will be lodged over a fee simple lot including fee simple pursuant to the Southbank Corporation Act 1989.
2. The request to extend a priority notice will be lodged over all lots on the titles it will be lodged over.
3. The request will extend the priority notice over all titles where the priority notice is current.
Exclusions
The PNE – request to extend a priority notice over a lot is an instrument that will not be required to be lodged using an ELN if it meets ANY of the following criteria:
1. Water Allocation Titles
Inclusions
The PNW – request to withdraw a priority notice over a lot is an instrument which will be required to be lodged using an ELN if it meets ALL the following criteria:
1. The request to withdraw a priority notice will be lodged over a fee simple lot including fee simple pursuant to the Southbank Corporation Act 1989.
2. The request to withdraw a priority notice over will be lodged over all lots on the titles it will be lodged over.
Exclusions
The PNW – request to withdraw a priority notice over a lot is an instrument that will not be required to be lodged using an ELN if it meets ANY of the following criteria:
1. Water Allocation Titles
Inclusions
A Form 5 – Transmission Application (Grant in Queensland or Queensland Recognised Grant) will be able to be lodged using an ELN if it meets ALL of the following criteria:
1. The transmission application will be lodged over a fee simple lot.
2. The transmission application will transmit all lots on all titles it will be lodged over.
3. A grant of representation in Queensland or a Queensland Recognised Grant has been obtained.
Exclusions
A Form 5 – Transmission Application (Grant in Queensland or Queensland Recognised Grant) is not able to be lodged using an ELN if it meets ANY of the following criteria:
1. Where the date of death is prior to 1 January 1982.
2. Where the personal representative is to be recorded as a joint tenant, and one of the parties to that joint tenancy is an organisation.
3. Where a personal representative to be recorded has the same name as the deceased.
Functionality Exemption – How do I know if my mandated instrument is exempt for functionality?
To confirm if the functionality exists to lodge a mandated instrument by eConveyancing or not, you should review the list of inclusions and exclusions in the Instrument Specific Exemptions section above and make a determination as to whether the mandated instrument satisfies any of the exemptions listed. If there is no applicable exemption for the instrument, then no valid exemption for functionality applies and the instrument must be lodged by way of eConveyancing.
What do I do if the instrument I want to lodge is exempt?
If you determine that the instrument you want to lodge is exempt from the eConveyancing mandate, you should complete and prepare an Exemption Request Form (ERF) and deposit it in conjunction with the paper form when you lodge it. The ERF can be obtained from the Forms page.
I have a question about the Mandate, what should I do?
If you have a question about the mandate, you should first check this website, as well as the Land Title Practice Manual, and the Mandate FAQ’s page to ensure the question has not been answered already. If you cannot find the answer to your question, you should contact Titles Queensland.
I have received a warning from my ELNO about my Instrument, what should I do?
A warning is returned to provide an opportunity for a subscriber to ensure details are correct, or identify items which, may or may not, impact registration, it does not mean that the instrument will not be accepted for lodgement. As such a ‘Warning’ will not prevent lodgement of a dealing (in paper or via an Electronic Lodgement Network), rather it is the obligation of the subscriber to complete the documents correctly and certify the details provided are true and correct prior to lodgement. If you require assistance, you should contact your respective ELNO (PEXA or Sympli).