There has been considerable confusion about the extent to which the LR identification rules apply to those executing documents under powers of attorney. The starting point is the confusing Practice Guide (PG67) issued by the LR which says ‘confirmation of identity is also required for any attorney who is not represented and who is acting on behalf of one of the parties’. The obvious implication of that wording is that if an attorney is represented by a solicitor, then there will be no need for separate identification (even though a certified copy of the power of attorney itself will have to be produced in the usual way). Indeed, that interpretation was adopted by many district LRs, although it now seems that interpretation was wrong. The LR has changed its own internal guidance and says that all attorneys involved in registerable transactions must be identified under the rules – irrespective of whether those who appointed them are themselves ‘represented’. Accordingly, applicants for the registration of transactions involving attorneys whose IDs have not been certified (or otherwise verified) can therefore expect to receive LR requisitions in the future, even though they would not have done so in the past.

For instance, suppose a transferor decides at the last minute to execute a TR1 through an attorney. That will raise problems for the buyer’s solicitor when he comes to apply for registration of the transfer. The solicitor acting for the buyer may know little if anything about the attorney and will thus be unable to certify the identity of, or claim to represent, the attorney. Accordingly, unless the buyer is in a position to require a formal certificate of identity at completion, the buyer’s solicitor will be unable to comply with the ID rules. The difficulties become even greater if it is a mortgage being discharged by a lender acting through an attorney on a transfer on sale, which is a common practice for many banks. In practice, lenders accustomed to producing nothing more than a certified copy of the power of attorney may be unprepared to supply further evidence of the attorney’s ID. Moreover, the solicitor acting for the buyer may not even be aware of the lender’s intention to execute a release of its charge in this way, and if the release is not produced until after completion, it is questionable whether the undertaking on which the buyer’s solicitor relied will extend to including the attorney’s ID.

The obvious answer would seem to be to include a special condition requiring the seller to execute the transfer in person (and not through an attorney). As far as lenders are concerned, once again, the best suggestion may be to put the onus on the seller, by requiring that any discharge is not executed by an attorney (but whether a seller would accept that remains doubtful – in which case, the only real solution is to get the discharge executed in escrow beforehand, unless it is a residential mortgage which is being discharged electronically, in which case the problem should not arise).

For an excellent review of the issues see article in [2010] 250 PLJ 2.