Deeds and mortgages during COVID-19
In Queensland, deeds usually need to be made on paper or parchment (i.e. not electronically) and must meet other formal requirements to take effect as a deed (including being signed in the physical presence of other people in certain circumstances).
These formal requirements have made it difficult for valid deeds to be made during the COVID-19 pandemic.
However, thanks to a temporary regulation, you can now make a deed electronically, in counterparts and by split execution, without having to be physically close to another person.
These changes align with and complement similar changes made by the Australian Government about how corporations may execute documents under the Corporations Act 2001 (Cwlth).
These changes apply to the Property Law Act 1974 and the common law, but no other laws have been amended that may regulate deeds, including the Land Title Act 1994.
Making a deed
Under the temporary arrangements, deeds do not have to be made on paper or parchment and can be made electronically.
A deed must:
- be in writing
- contain a clear statement that it is a deed
- still be delivered in accordance with section 47 of the Property Law Act 1974.
A deed does not need to be indentured or sealed.
An individual can sign a deed themselves or they can authorise an agent to sign it on their behalf—a witness is not required.
A corporation can sign a deed (no need to use the corporation seal) if signed by either:
- 2 directors of the corporation
- 1 director and 1 secretary of the corporation
- the director, if the corporation only has 1 director who is also the only secretary
- a lawfully authorised agent or attorney of the corporation, whether or not they are appointed under seal.
Statutory corporations can also sign deeds by a person or in a way authorised under their legislation.
Each person who signs a deed can sign a counterpart (i.e. an exact copy of the document)—all signatures do not need to be on the same document.
This includes multiple people who sign for a corporation—they too can each sign a counterpart
All counterparts must be kept together and together they constitute a fully executed deed.
However, any deeds that are required to be lodged with the Titles Registry (except general or enduring powers of attorney) must be signed in accordance with the requirements of the Land Title Act 1994.
Currently, there is some uncertainty about whether particular mortgages can be electronically signed and need to be witnessed.
The particular mortgages of concern are the ‘same-terms’ mortgages that are required to be held by a mortgagee on the same terms as a mortgage that is lodged for electronic conveyancing under the Electronic Conveyancing National Law.
The temporary regulation removes the uncertainty and provides clarity for the banking industry that same-terms mortgages may be electronically signed and do not need to be witnessed.
However, any mortgage that is not lodged using electronic conveyancing must continue to be signed and witnessed in accordance with the Land Title Act 1994.
Learn more about these changes in the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020.