Signing deeds during the COVID-19 pandemic

The Land Registry have announced that with effect from 27 July 2020 and until further notice, as well as ‘Mercury’ signing being an approved method of signature, electronic signatures are also now an acceptable method for deeds and registration purposes.

Electronic signatures

In common with many other organisations the Land Registry’s progress to adopting new technology and processes has accelerated over the last few months and a further update has been announced this week which sees the Land Registry incorporate the use of electronic signatures.

In order for an electronically signed deed to be accepted by the Land Registry the following requirements must be satisfied:

• Both parties must agree to the use of electronic signatures in relation to the deed.
• Conveyancers must be acting for both parties and will be in charge of setting and controlling the signing process through the platform.
• The six step signing and dating process must be followed.
• The conveyancer must lodge the application electronically with a pdf of the deed and must provide the following certification: “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.”

It has also been agreed that an electronic signature can be witnessed in the same way as a wet ink signature, the only difference being that the witness would see the person signing adding their signature to a document on a screen. The witness needs to be physically in the presence of the person using the electronic signature.

Please follow this link for the full list of deeds that can be signed electronically.

In order to comply with the requirements set out by the Land Registry the deed must be signed by an individual on their own behalf or on behalf of someone else, including a company. Where a deed is being signed on behalf of a company by two “authorised signatories” there will be no need for a witness to be present or to sign in accordance with Section 44(2)(a) of the Companies Act 2006.

Conveyancers must make sure to advise witnesses clearly and ask them to sign next to a statement which confirms that they were physically present when the signatory signed the deed electronically.

Conveyancers will use a platform upon which the new signing process will be carried out. The platform will produce completion certificates and reports for audit purposes to support the signing process at the conclusion of a matter to include details of the full trail of signatures, times, dates and email addresses used. The platform will be secured by way of a One Time Password (OTP) entry system for the signatories which will expire after use.

If it is necessary for one party to sign in wet ink (either in the conventional way or as part of the Mercury signing process set out below) and the other party to sign electronically this can be carried out and will be acceptable to the Land Registry if done by way of counterpart deeds. As long as all of the Land Registry requirements are met it is also acceptable for parties to sign counterpart deeds using a different secure signature platform.

‘Mercury’ signing

With effect from 4 May 2020 ‘Mercury’ signing has been a temporary approved method of signature acceptable for deeds and registration purposes.

The aim of this change was to relieve some of the challenges we face during the COVID-19 restrictions by facilitating remote signing of deeds where several parties need to sign.

Mercury signing is a form of signing settled on as a response to comments in R (Mercury Tax Group Ltd) v HMRC [2008] EWHC 2721 where it was agreed that for a document to be executed as a deed “necessarily involves that the signature and attestation must form part of the same physical document” being signed.

Where all parties to a deed have legal representation, for the purposes of registration, the Land Registry will accept the following deeds or documents that have been signed in accordance with “Option 1” detailed in their Practice Guide 8 under Section 12:

• A deed that effects one of the dispositions as referred to in Section 27(2) and (3) of the Land Registration Act 2002. Click here for more details on the legislation
• A discharge or release in Form DS1 or Form DS3
• The grant of a charge (for example, a mortgage)
• Equivalent deeds in relation to unregistered land
• Powers of Attorney (not to include a Lasting Power of Attorney)
• If the assent is not made by deed, the seller’s signature does not need to be witnessed.

In all cases, all parties to the deed or assent must have legal representation.

All conveyancers involved will need to agree to this method of signature prior to the parties signing and it is important to note that the witnessing is required to take place in person rather than by a video call, in exactly the same way as it is for any document to constitute a deed.

The procedure for signing in this way is:

1. Each party must sign the signature page of the deed in pen.
2. Each party to the deed must then send a single email to their conveyancer along with the final version of the deed and a scanned or photocopied copy of the signed signature page in PDF or JPEG format.
3. The final version of the deed and the PDF/JPEG of the signed signature page will constitute an original signed document.
4. Once signatures have been obtained from all parties, the combining of the deed and signature pages may be done by either electronic combining or being printed and physically combined.
5. The conveyancer must then certify the whole deed as a true copy of the original.

Guidance is also given as to the registration of deeds:

• If there has been an electronic combination, the signature pages can be uploaded to the Land Registry portal as a single document.
• If the deed has been physically combined, the deed and signature pages can be scanned as a single document.
• The application can also be made in paper form and a copy of the single combined deed including the signature pages will need to be lodged.
• If the deed was electronically combined it can be printed and sent and this will still be accepted.

The Land Registry have also updated their Practice Guide 8 in relation to plans. It is a Land Registry requirement for a plan included in a transfer or other deed dealing with a part of a registered title to be signed by the seller. In order to assist conveyancers amidst the COVID-19 restrictions the following temporary amendments have been made to the Practice Guide:

• If the seller’s conveyancer has authority to sign the deed on their client’s behalf then they may also sign the plan by way of a typed signature before emailing the seller the final agreed copy of the deed so that it includes the signed plan.
• Before returning the final agreed copy of the deed to their conveyancer the seller may now type their name onto the plan by way of signature and include this as part of the final deed.

Please see the Land Registry’s updated Practice guide 8: execution of deeds for further information.