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COVID-19 Comment and interim guidance on remote witnessing of A&Is

19 March 2020 - By Duncan Terris, chair Property Law Section

The Property Law Section has been fielding a number of enquiries from members about remote witnessing of A & Is, AML-CFT compliance documentation and statutory declarations.  We have been in discussions with the RGL team, and its interim guidance on completing A & I forms and ID verification when working remotely appears below.

We acknowledge that there are no protocols for remote witnessing of AML-CFT compliance documentation. Hopefully law firms will have these documents on file for existing clients where settlement is imminent. We understand that the more difficult situation is around CDD for new clients.  We are also aware that DIA is constrained by the legislation as to any concessions that can be made.  This will not prevent the PLS from conveying to DIA the difficulties surrounding AML-CFT compliance obligations due to Covid-19, and pushing for a workaround  - legislative or otherwise.  The same issues surround statutory declarations.

There will inevitably be cases where you will need to negotiate a deferred settlement due to clients being sick or in isolation and documentation cannot be completed.  We ask that you exercise professional courtesy in your dealings with other practitioners during these unprecedented times.

Please be patient as we continue to work through these issues on behalf of all property lawyers.   We will keep you updated on our progress when we have anything of note to report, via email bulletin and the New Zealand Law Society | Te Kāhui Ture o Aotearoa’s website here.

LINZ: Interim guidance on completing client A&I forms and ID verification when working remotely

We understand some practitioners are facing challenges due to self-isolation in response to Covid-19. Of particular concern is meeting the “in person” requirements of s7(1) of our Authority and Identity Requirements for E-Dealing Standard 2018 (LINZS20018).

We have received several enquiries about the requirements in section 4.7 of our Authority and Identity Requirements for E-Dealing Guideline 2018 (LINZG20775). The Guideline states that audio-visual technology may be used to obtain authority and verify identity if the practitioner:

  1. has known the existing client for more than 12 months; and
  2. holds a copy of the client's acceptable photo ID (that is current or expired within the previous 12 month) on file; and
  3. is able to simultaneously see and hear the client and clearly see what documents are being signed for the duration of the identity verification session.

Verifying identity via audio-visual technology must not be undertaken if the practitioner:

  1. has doubts as to the identity or capacity of the client; or
  2. has concerns that the client may be acting under duress or at the direction of another person; or
  3. is not able to simultaneously see and hear the client and clearly see what documents are being signed for the duration of the identity verification session.

Shortly, Land Information New Zealand will be publishing updated guidance on this and other possible approaches to verifying authority and identity.

In the meantime, practitioners may choose to use audio-visual methods in cases which do not strictly comply with the requirements set out in 1 and 2 above, provided they take other reasonable steps to confirm their clients’ identity and, where necessary, verify their ownership of the property (see para 4.2.2 the Guideline). This is particularly important where the transaction is high risk (as defined in the Guideline).

Practitioners should ensure that the additional steps taken are documented in a file note to be held with the A&I and other supporting documents.

Ultimately, if in doubt, practitioners should not proceed with a transaction unless they are satisfied of the identity and bona fides of their client.

Last updated on the 19th March 2020