Comparative study of e-conveyancing - 1

1.  Introduction
The aim of this series of articles is to give a brief overview of the state of e-conveyancing in a number of countries.  Its initial impetus came from the Irish Law Reform Commission's Report e-Conveyancing: Modelling of the Irish Conveyancing System  (See Reform group's e-conveyancing plans which was published in 2006) with the intention of developing an electronic system for the transfer of the ownership of property in Ireland.  The five jurisdictions which will be looked at are Ontario, Canada; England and Wales; New Zealand; Australia and Scotland.  They have been chosen for analysis because of the varying stages of development of e-conveyancing they find themselves at and the similarities which they have to South African conveyancing.  Other reasons for looking at them include:

• The operation of a dual registry system and land issues such as mapping are present.
• All have had to conduct an analysis of the legislative basis for conveyancing and where necessary have needed to amend legislation to enable an e-conveyancing solution.
• All have faced similar challenges to South Africa in terms of issues with the traditional paper-based conveyancing process.  Areas they focused on include the generation of paper based documents, inherent delays in the conveyancing process due to communication difficulties between different stakeholders, and the difficulty in retrieving information lying in different repositories and databases.
• All have encountered challenges during their implementation phase and those currently in development have significant challenges that will need to be overcome in order to ensure the success of the solution.  Challenges include: those involving the various stakeholders; educating and training relevant stakeholders and users; and the need to have a sequenced and a phased implementation.  The experiences from these challenges and lessons learned from them provide important information for us to consider when developing and implementing a South African solution.
• Ontario (Canada) and New Zealand have been engaged in some aspects of an e-Conveyancing solution longer than any other jurisdiction and as a result, are the foundation models for many modern e-Conveyancing solutions.
• England and Wales have slowed down a bit.
• Australia is currently in the initial development process.
• Scotland is progressing nicely.

Before launching into the comparative study I would like to note that I feel it is the methodology and the ultimate aims of the Irish Report combined with an understanding of the approaches taken by the various jurisdictions which are of the greatest use to us in South Africa rather than an in depth analysis of specific technical issues.  That said I have nevertheless highlighted and fleshed out features which are relevant to any South African e-conveyancing solution.  If this creates an uneven bias and emphasis, I apologize.

In reading the series, readers should keep the following thoughts in mind:

1. How far do you think South Africa is in developing and implementing a comprehensive online, paperless e-conveyancing solution?
2. What do we envisage as an eventual South African e-conveyancing solution?
3. Where and how could key participants and institutions such as attorneys, banks, estate agents, the Deeds Offices and mortgage originators fit in to such a solution?
4. With what software – that which is currently used or specially written?
5. Who will develop the solution – government, private enterprise, alone or in partnership?
6. What would a South African Bearing Point Modelling Report look like?

Before I look at the various jurisdictions, a brief note is necessary on the legislative aspects necessary for conveyancing reform.

2.  Three strands
In reforming and modernising land law and conveyancing law to achieve an on-line paperless e-conveyancing process, all jurisdictions will have to deal with three strands of reform.

1. Substantive Law Strand,
2. Administrative Law Strand, and the
3. Procedural Strand

2.1.  Substantive Law Strand
The Substantive Law Strand concerns the reform and modernising of the substantive land law and conveyancing law which in South Africa could entail over 40 pieces of legislation ranging from The Deeds Registries Act to miscellaneous acts such as the Usury Act.  It encompasses  the following:

• updating the law, to align it with changes in society;
• promoting simplification of the law and its language, to make if more easily understood and accessible;
• promoting simplification of the conveyancing process, in particular the procedures involved;
• keeping in mind the overall aims of e-Conveyancing.

2.2.  Administrative Law Strand
The Administrative Law Strand deals with the application of information technology to conveyancing transactions and involves a study of how various public and private bodies  provide a service for or disseminate the information necessary for transactions, here the information stored in the Deeds Registries springs to mind.

2.3.  Procedural Strand
The Procedural Strand subjects the conveyancing process to a step-by-step analysis with a view to enabling the process to be carried out electronically.

2.4.  Overlap
The Administrative Law and Procedural Strands involve considerable overlap and in Ireland BearingPoint was appointed to prepare a detailed process model of the current conveyancing process and to examine the state of readiness of public and private bodies concerning the application of eCommerce to e-Conveyancing.

3.  BearingPoint's Modelling Report
BearingPoint won the tender and was tasked with providing the following outputs, which also could be applicable to South Africa:

• Identification and documentation of the key processes and procedures associated with the conveyancing process in Ireland.
• Identification and documentation of opportunities for simplification, consolidation and rationalisation of processes and procedures to facilitate the introduction of an e-Conveyancing process in the future.
• Recording of enhancements, modifications and/or changes to the existing conveyancing process and procedures which would need to be supported by legislative or other similar change.
• Provision of a full lifecycle view of the conveyancing process across process and procedural boundaries and specifically identifying opportunities for the removal of redundant or part redundant processes or procedures and the identification of opportunities for parallel processing.

The Invitation To Tender document also stated that an important deliverable from the study would be detailed process, procedural and information flow descriptions (which would include sub-processes, illustrating, for example, the differences between sale and purchase, auction or private treaty, mortgage or cash purchase, freehold or leasehold title registered and unregistered title and others) covering the conveyancing system supported by appropriate system, information and dataflow diagrams.

This was all achieved when the Modelling Report was released in 2006.  Running to over 180 pages it involves 3 major elements:

1. 'End-to-end' process model of the then current entire conveyancing process.
2. Comprehensive overview and analysis of the role played by public and private stakeholders associated with the conveyancing process and their technological state of readiness for e-conveyancing.
3. A vision and strategy for e-conveyancing in Ireland supported by conceptual operating models and an outline roadmap of how to achieve it.

We must keep in mind that what is often punted as a comprehensive e-conveyancing system is merely the application of computer technology to the registration aspects of the conveyancing process and in a sense involve e-Registration rather than a comprehensive  e-Conveyancing system.  Which system should involve the application of computer technology to most, if not all, of the stages of the conveyancing process, that is, from the decision of the seller to sell the property, through the pre-sale stages leading to a binding contract to sell to a particular purchaser with the signing of the offer to purchase, getting rates clearance certificates, organising a bond, cancelling existing bonds, obtaining electrical certificates and such like before the property is registered in the Registrar of Deeds. 

4.  Six jurisdictions
Ireland, like South Africa is behind other jurisdictions but their experience and state of readiness and the Bearing Report template so to speak can benefit us as a starting point in our enquiry in two main aspects:

1. With regard to points covered in section 3 above which could serve as an example of the necessary in-depth analysis required in implementing e-conveyancing – which will not be covered here as it is very technical and the subject of another article; and
2.  With regard to the value to be had and lessons to be learnt in comparing the current state of e-Conveyancing implementation in other countries with ours, which will form the basis of the rest of the article.