Electronic Signatures in Conveyancing
The Law Commission concluded in a report published in September 2019, that an electronic signature was capable in law of being used to execute a document (including a deed). Land Registry previously advised that to retain control of the means of execution used for documents that must be registered (particularly where title guarantee was offered), wet signatures would be required and as such, despite the legal position, parties could not execute documents electronically for submission to Land Registry.
In the early stages of the coronavirus lockdown, the Land Registry brought together industry professionals to discuss the immediate issues of the conveyancing process during lockdown and to explore solutions which would benefit the conveyancing process in the future. On 9th July 2020, Land Registry published draft guidance setting out the basis on which it will accept electronic signatures to execute deeds in conveyancing transactions.
The draft guidance sets out that transfer deeds (and certain other deeds) that have been electronically signed, will be accepted provided the following requirements are met:-
- All the parties agree to the use of electronic signatures and an electronic signature platform (Platform) in relation to the deed.
- All the parties have conveyancers acting for them.
- A conveyancer is responsible for setting up and controlling the signing process through the Platform.
- The signing and dating process is as follows.
Step 1 – The conveyancer controlling the signing process:
- Uploads the final agreed copy of the deed (including any plans) to the Platform;
- Populates the Platform with the name, email address and mobile phone number of the signatories and witnesses;
- Highlights the fields that need completing within the deed and indicates by whom they are to be completed, setting out the order (so the witness is after the signatory whose signing they are witnessing).
Step 2 – The Platform emails the signatories to let them know the deed is ready to sign.
Step 3 – To access the deed on the Platform via the email they have received, the signatories are required to input a one-time password (OTP) sent to them by text message by the Platform. The OTP must contain a minimum of six numbers.
Step 4 – The signatories enter the OTP and sign the deed in the physical presence of the witness, with the date and time being automatically recorded within the Platform’s audit trail.
Step 5 – Having observed the signatory sign the deed, the witness will receive an email from the Platform inviting them to sign and add their details in the space provided in the attestation clause. The witness inputs an OTP sent to them by text message by the Platform, signs and adds their address in the space provided, with the date and time being automatically recorded again. The witness must sign at this stage, so that their signature and the signatory’s are contemporaneous.
Step 6 – Once the signing process has been concluded, a conveyancer effects completion of the deed by dating it within the Platform.
The conveyancer who lodges the application does so by electronic means and includes with the application a PDF of the completed deed. However, where the application is for first registration, a print out of the PDF, certified to be a true copy of the completed deed, can be lodged.
The conveyancer lodging the application (including an application for first registration) provides the following certificate: “I certify that, to the best of my knowledge and belief, the requirements set out in Practice Guide 8 for the execution of deeds using electronic signatures have been satisfied.”
The Land Registry asked for feedback on the draft guidance to be submitted to them by 18th July and it is expected that a practice note with further details on how electronic signatures may be used will be issued in the coming weeks.
