Covid-19 accelerated the remote execution of documents due to social distancing and self-isolation removing the ability to meet face-to-face. This led the Land Registry to conclude that electronic signatures are allowed to execute a document, including deeds.
This means that a transfer of ownership, mortgages and leases can now be signed electronically preventing unnecessary delays. However, caution is required to ensure the documents are signed in the correct format.
What is an electronic signature?
An electronic signature is the replacement of a wet-ink signature with an electronic signature such as a word-processed or scanned signature. An independent witness is still required and they can also sign electronically.
HM Land requirements for a witnessed electronic signature
In July 2020, the Land Registry opted for a witnessed electronic signature. This is where the deed is signed by an electronic signing portal but the signature is witnessed in person. The Land Registry outlined a particular criterion; the main points include:
All parties agree to the use of electronic signatures and a platform in relation to the deed.
All the parties have conveyancers acting for them otherwise an electronic signature cannot be used.
A conveyancer sets up and controls the signing process through a platform.
The signing and dating process is completed correctly. This includes seven main steps:
STEP 1: The conveyancer controls the signing process by uploading the final copy of the deed and highlighting the fields that need completing.
STEP 2: The platform emails the signatories.
STEP 3: To access the deed on the platform through the email, the signatories are required to input a one-time password (OTP) sent to them by text message.
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.
STEP 5: Once the signatory has signed the deed, the witness will receive an email from the platform to sign and add their details.
STEP 6: Once the signing is complete, the conveyancer will date the deeds within the platform with the date it took effect.
STEP 7: Finally, the conveyancer lodging the application will need to include a certificate that they certify to the best of their knowledge and belief that the requirements for the execution of deeds using electronic signatures have been satisfied.
Can all deeds be signed electronically?
Currently there are only selective deeds that can be signed electronically. A few examples include:
A deed that effects one of the dispositions referred to in section 27(2) and (3) of the Land Registration Act 2002
A discharge or release in form DS1 or form DS3
Deeds in respect of unregistered land
A Power of Attorney (except lasting power of attorney)
How does a digital signature differ from an electronic signature?
A digital signature is a more secure method process as it identifies the signatory and the document is encrypted so it cannot be altered. An example of a digital signature is a qualified electronic signature, which is explained below.
What is a Qualified Electronic Signature?
This is a more advanced type of electronic signature which ensures the signer’s identity is verified by a ‘Qualified Trust Service Provider’ (QTSP). A QTSP is a trust service provider who provides one or more qualified trust services and is granted a qualified status.
An example of an electronic trust service includes the validation, verification and authenticity of electronic signatures. Organisations must undergo an independent assessment and regular audits to ensure they meet the strict requirements outlined in the UK ‘electronic identification and trust services’ (eIDAS). As QTSP are provided with the highest degree of trust, it removes the requirement for a witness. However, this method is not currently accepted by HM Land Registry.
Knowing whether to sign electronically can seem overwhelming due to the complex process especially with the advancements in technology making electronic signatures more secure. Whether you need help with a property transaction or advice on the use and legality of certain methods of signature our team at Farleys can help. Please contact us on 0845 287 0939 or by email to discuss how we can assist.