Witness?

[SeafordSunshine]

Hello,
I've just seen a NSW resi. lease.

The agent has signed lease on behalf of the landlord,
AND witnessed the tenants signatures.

Is this legal?
any thoughts?
thanks

I thought 'witness' was supposed to be a 'disinterested party"

 

[geoffw]

In NSW a lease will not be able to be registered if a witness is a party to the lease according to this

 

[Terry_w]

Yes, a party to the lease cannot witness. The agent is acting as agent for the landlord so they are a party.

 

[Scott No Mates]

Yes, a party to the lease cannot witness. The agent is acting as agent for the landlord so they are a party.

Does that apply if the witness is another agent from the same office/agency?

 

[Terry_w]

Does that apply if the witness is another agent from the same office/agency?

Good question. I would think it does because the agency itself is an interested party.

Just think of what could go wrong - one party to the contract denies signing it. The witness, is the agency person and the agency benefits out of the agreement. Probably not good evidence for a court.

 

[devank]

My broker (JP as well) witness all my loan documents. Strictly speaking he is also an interested party in this transaction.

 

[Terry_w]

My broker (JP as well) witness all my loan documents. Strictly speaking he is also an interested party in this transaction.

Yes, not a good idea on his part.

 

[Joe D]

Just think of what could go wrong - one party to the contract denies signing it. The witness, is the agency person and the agency benefits out of the agreement. Probably not good evidence for a court.

Terry
My understanding is that the Witness is simply signing to confirm that they saw "XYZ" sign the document in the space. The Witness does not necessarily need to know what the document was or contained. The Witness to my understanding is for the benefit of the person who signature they are witnessing.

From a practical POV you would need two people to perjure(?) themselves to deny the document was signed by the party to the agreement especially if both are real and identifiable.

On the flipside, what if the person signing the document simply makes up a name as the witness and signs off? The other party to the agreement won't be any the wiser!

I would be interested in a true legal interpretation of the role each Witness to any lease document.

 

[Terry_w]

Terry
My understanding is that the Witness is simply signing to confirm that they saw "XYZ" sign the document in the space. The Witness does not necessarily need to know what the document was or contained. The Witness to my understanding is for the benefit of the person who signature they are witnessing.

From a practical POV you would need two people to perjure(?) themselves to deny the document was signed by the party to the agreement especially if both are real and identifiable.

On the flipside, what if the person signing the document simply makes up a name as the witness and signs off? The other party to the agreement won't be any the wiser!

I would be interested in a true legal interpretation of the role each Witness to any lease document.

The legislation around this is found in the conveyancing act (in NSW) and a witness cannot be a party to the deed. Is an employee of a party a party? = I don't know, but best to avoid the situation I think.

If the document is not a deed then I am note sure if there is any requirements surrounding witnesses but it would be a good idea to avoid potential issues.

 

[wylie]

This topic interested me because I just witnessed signatures on a new lease last night. I'm not a party to the lease (house is in husband's name) but I act as his agent and have signed the bond form etc, so I called RTA to check.

I was told that any party who has any interest in the lease cannot sign as witness and the tenants cannot witness each other's signatures. I asked if that meant the four tenants had to get someone NOT on the lease over to witness their signatures and was told that is the case.

So I'm holding on the signed lease I have and asking for a new lease to be signed. I learned something today.

 

[Terry_w]

s38Conveyancing act NSW applies to witnessing deeds:
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s38.html

 

[SeafordSunshine]

Thank you all!

So glad it made others question the same issue!

So nice to be able to throw my question into the ring and have some debate about it!

I thought it was a questionable one!

In future if I see any leases like that one,
I Will ask for a new dis interested witness!

Thanks all

Seaford Sunshine