Notary or Conveyancer: Who Does What

A conveyancer handles the legal and administrative work of transferring property in Australia: contracts, searches, settlement and lodging the transfer. A notary public witnesses signatures and certifies documents so they will be accepted overseas. Most Australian property sales need a conveyancer or lawyer and no notary. A notary comes in when a document, or a party, crosses a border.

Key takeaways

• A conveyancer, or a lawyer doing conveyancing, runs an Australian property transfer from contract to settlement.
• A notary witnesses signatures, administers oaths and certifies copies, mainly for documents used overseas.
• A purely domestic sale or purchase rarely needs a notary.
• If a buyer or seller is overseas, the conveyancer usually tells them who can witness their signature where they are.
• If you are in Australia dealing with property overseas, you usually need a notary here, often followed by a DFAT apostille.
• Neither a conveyancer nor a notary replaces a solicitor's advice on disputes, estates, trusts or complex title questions.

What does a conveyancer do?

Conveyancing is the legal process of transferring ownership of land from one person to another. In Australia a conveyancer, or a solicitor acting as one, typically reviews or prepares the contract of sale, carries out searches on the title and the property, works out adjustments for rates and other charges, prepares the transfer and other settlement documents, verifies their client's identity for the transfer, and settles the transaction, now usually through an electronic settlement platform, before the transfer is lodged with the state's land titles office.

Conveyancing is regulated by each state and territory. In most, conveyancers are licensed or registered, while in some jurisdictions conveyancing work is done by lawyers only. The detail differs, so check with the relevant state or territory regulator or your lawyer. A conveyancer's expertise is local: they know that state's contracts, forms and land registry. They do not usually deal with documents for use in other countries.

What does a notary do?

A notary public is usually an experienced lawyer appointed under state or territory arrangements to perform notarial acts. In practice that means witnessing signatures after checking identity, understanding and free will; administering oaths and affirmations for affidavits; certifying copies of documents after sighting the originals; and preparing notarial certificates that foreign authorities recognise. A notary never certifies that a document's contents are true.

The notary's work is aimed mostly at use overseas. DFAT's page on notarial services says to use an Australian notary for most notarial services, and a Justice of the Peace to witness signatures or certify copies for use within Australia. A notary does not run conveyancing, settle property transactions or search titles.

Does an Australian property sale need a notary?

Usually not. When both parties are in Australia and the property is in Australia, the conveyancer or lawyer handles the transaction, and any documents that need witnessing for Australian use can typically be witnessed by the people the state's rules allow, which often include a JP. The land titles office is an Australian body, so a notarial certificate designed for foreign authorities adds nothing it needs.

Much of the signing has also moved online. With electronic conveyancing, the conveyancer usually signs the transfer digitally on the client's behalf, under a client authorisation, after verifying the client's identity. That identity check is the conveyancer's job under the rules they work to, not the notary's. Ask your conveyancer what they need from you before paying anyone else to witness anything.

Situation	Conveyancer or lawyer	Notary
Buying or selling in Australia, all parties here	Runs the transaction	Not usually needed
Selling Australian property while living overseas	Runs the transaction and gives signing instructions	Possibly, overseas, if the conveyancer asks for one there
Signing a power of attorney for an Australian sale	Advises on the form and state rules	Only if the document is signed overseas and a notary is accepted
Selling property overseas while living in Australia	Not involved	Usually witnesses the documents here, then DFAT
Inheriting property overseas	Not involved	Witnesses and certifies documents for the foreign estate
A dispute, estate or trust question	May refer you to a solicitor	Not a source of legal advice

What if a buyer or seller is overseas?

This is where the two roles most often meet. If you own property in Australia but live abroad, your conveyancer still runs the sale, but you may need to sign documents, such as a client authorisation, a transfer or a power of attorney, where you are. Your conveyancer will tell you who can witness your signature and how your identity must be verified, because that depends on the state's rules and the document.

Often the answer is an Australian consular official. DFAT's page on notarial services overseas lists property transfers, only for buying or selling property in Australia, among the documents consular officials can witness. In other cases a local notary or another person the conveyancer accepts may do. Follow the conveyancer's instructions exactly, because a transfer witnessed by the wrong person may be rejected by the land titles office. An Australian notary cannot witness a signature made abroad.

What if you are in Australia and the property is overseas?

Then the roles reverse. An Australian conveyancer has no part in selling a flat in Kathmandu, a house in Manila or land in Italy; the transaction is run under that country's law, often by a lawyer or notary there. What you need in Australia is someone to witness your signature on the foreign documents, usually a power of attorney, a sale deed or a consent, so the foreign side will accept them. That is a notary's work.

After notarisation, the document usually needs a DFAT apostille if the country is a member of the Hague Apostille Convention, or DFAT authentication and then embassy legalisation if it is not. Check the country's status on the HCCH table on the day. Our guide to documents for selling overseas property walks through this chain, and our guide to international powers of attorney covers the most common document.

What about a power of attorney for an Australian sale?

Some owners who live abroad, or who cannot attend to a sale themselves, appoint someone in Australia under a power of attorney to sign for them. For Australian land, the power of attorney generally has to meet the rules of the state or territory where the property is, and in some jurisdictions it must be registered with, or produced to, the land titles office before the attorney can deal with the land. The form, the witnessing requirements and any registration step differ between states and territories.

This is a question for your conveyancer or a solicitor before anything is signed. A foreign-style power of attorney notarised overseas may not satisfy an Australian land registry, and an Australian-form document witnessed by the wrong person abroad may be refused. Ask the conveyancer which form to use, who may witness it where you are, and whether it must be registered. Our power of attorney and legal declarations page covers the notary's part when a power of attorney goes the other way, from Australia to another country.

Can a notary act as your conveyancer?

Many notaries are also practising solicitors, and some solicitors do conveyancing, so one person can occasionally wear both hats. But the roles are separate. When a notary performs a notarial act, they are an independent witness, not your representative, and they will not advise you on whether a contract is a good deal or whether a title is clear. If you need legal advice on the transaction, ask a solicitor acting for you. Our guide to a notary versus a lawyer explains the difference, and our guide to notary conflicts of interest explains why a notary may decline to witness a document for a client they act for.

How do you work out who you need?

1. Locate the property. An Australian property means an Australian conveyancer or lawyer; an overseas property means a lawyer or notary in that country.
2. Locate the signers. Note who is signing, and where each person will be when they sign.
3. Ask the party running the transaction. Your conveyancer, or the foreign lawyer, tells you which documents need witnessing and by whom.
4. Use a notary for foreign use. If a document signed in Australia is going overseas, have it notarised here.
5. Check legalisation. Ask the receiving authority whether it needs an apostille or authentication, and check the HCCH table.
6. Get advice on anything contested. See a solicitor about disputes, estates, trusts, tax or title problems.

Common mistakes to avoid

The most common mistake is paying for a notary on a domestic sale when the conveyancer needed nothing more than a verified identity and a signed authorisation. The second is the reverse: asking an Australian conveyancer to handle an overseas property, which is outside their field. The third is an overseas seller having a transfer witnessed by whoever is nearest, rather than by the person the conveyancer specified. The fourth is expecting the notary to explain the contract. A notary witnesses and certifies; advice on the deal comes from your own lawyer.

Here is an illustration, not a real case.

Mei lives in Perth. She is selling a unit in Sydney and, at the same time, her late father's apartment in Kuala Lumpur. For the Sydney sale, her conveyancer verifies her identity and settles electronically; no notary is involved. For Kuala Lumpur, the Malaysian lawyer sends a power of attorney. Mei signs it before a notary in Perth, then has DFAT authenticate it. She checks the HCCH table, sees Malaysia is not listed as a member on the day, and asks the Malaysian High Commission about legalisation.

In short

A conveyancer runs a property transfer in Australia; a notary makes documents acceptable overseas. A domestic sale rarely needs a notary. If a party to an Australian sale is overseas, follow the conveyancer's instructions on who witnesses their signature there. If you are in Australia dealing with property abroad, you usually need a notary here and then DFAT. Our document notarisation page covers the notary's part, and our guide to notarising real estate contracts covers property documents in more detail.

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