Guidance

Our practice on electronic signatures that was current between 1 November 2021 and 27 March 2022

Updated 15 April 2024

Applies to England and Wales

13 Electronic signatures

13.1 Background

In Law Com No 386, referred to in the previous section (see Mercury signatures), the Law Commission concluded that an electronic signature was capable in law of being used to execute a document, including a deed. The Law Commission also concluded that an electronic signature could be witnessed in essentially the same way as a wet ink signature, except that the witness who is physically present at the time of the signing would see the signatory adding their signature electronically to a document.

At the same time, the Law Commission recognised that if a public registry only accepted wet ink signatures, then the parties would not be able to execute documents electronically, regardless of the legal position. It did not take issue with HM Land Registry’s position in its response to the Law Commission’s earlier consultation paper that a registration authority “needs to have control of the means of execution used for documents that must be registered, particularly where title guarantee is offered”.

13.2 Our practice

We will accept for registration transfers and certain other deeds (see Deeds that can be signed electronically) that have been electronically signed provided that the requirements (including the conveyancer’s certificate) set out in Our requirements are satisfied.

The signing will require the use of an operating system or a platform that manages the electronic signing process, including the creation of the electronic signature. There are several providers of such platforms that allow for Our requirements to be met. We do not prescribe that particular providers be used, nor do we have an approved list of providers.

To make clear to a witness what is expected of them, conveyancers drafting a deed that might be electronically signed may wish to add a statement to the following effect next to or beneath where the witness is to sign: “I confirm that I was physically present when [name of signatory] signed this deed.”

The deed may be signed by an individual or individuals on their own behalf or on behalf of another person, including a company. Where the deed is being signed on behalf of a company by two “authorised signatories” under section 44(2)(a) of the Companies Act 2006, no witness will be involved, and the requirements are to be read accordingly. In other circumstances where a deed can be executed without the need for any witnesses, the requirements are similarly to be read accordingly.

The parties’ conveyancers are advised to retain with their conveyancing file a copy of the completion certificate or audit report produced by the platform at the end of the signing process. Such a certificate or report should give an audit trail of the signing, including the time and date of the signatures, email addresses the document was sent to, the one-time password (OTP) method used, the fields that were completed and the IP addresses of the devices that were used.

The requirements set out in Our requirements need only be satisfied in so far as the deed is being lodged for the purpose of completing by registration a registrable disposition or for the purpose of first registration of title. For example, a unilateral or agreed notice can still be entered in respect of a pre-emption agreement in a deed, and an entry can still be made in respect of a deed of variation in respect of a restrictive covenant, where the deed is signed electronically but not in accordance with Our requirements.

13.3 Our requirements

1.All the parties agree to the use of electronic signatures and a platform in relation to the deed.

2.All the parties have conveyancers acting for them, except that only the lender in the case of a mortgage, discharge or release, the personal representatives in the case of an assent and the donor in the case of a power of attorney need have conveyancers acting for them. If any party is unrepresented (other than in the situations just outlined), including a party who is not signing themselves, electronic signatures cannot be used by any of the parties involved.

Where a deed is to be signed electronically by a party’s attorney, and the deed is one other than the power of attorney itself, a conveyancer must be acting in respect of the execution, but it does not matter for the purposes of these requirements whether the conveyancer was instructed by the party or by the attorney.

3.A conveyancer is responsible for setting up and controlling the signing process through the platform.

4.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 the witnesses. Where the platform allows, the details for a witness can be populated later, either by the signatory entering the details for their witness or the conveyancer doing so, provided this is done before STEP 5

• highlights the fields that need completing within the deed (including signature fields on any plans that are required to be signed) 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 an 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 – Once the signatory has signed 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.

STEP 6 – Once the signing process has been concluded, the conveyancer controlling the signing process or another conveyancer acting for one of the parties dates the deed within the platform with the date it took effect. (There will be a gap between this step and the previous one if, as will often be the case, the deed is signed by all the signatories and witnesses some time in advance of completion.)

5.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 original deed, can be lodged.

6.The conveyancer lodging the application (including an application for first registration) includes a certificate (not necessarily signed by them: see below) in the following form: “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 certificate needs to be dated and signed by an individual conveyancer, their full name and firm must be added and the deed or deeds for which the certificate is given must be specified. Appendix 3 contains an example of an acceptable certificate.

This certificate will be read by HM Land Registry as referring to the requirements as they were on the relevant date. This means that if, for example, the requirements in respect of the signing process change but the signing process has been completed before the date on which the requirements changed, the certificate will be read as referring to those particular requirements as they were before the change.

The certificate can be given by any party’s conveyancer who has satisfied themselves that the deed has been duly executed. In most cases involving transfers, the conveyancer controlling the signing process will be the seller’s conveyancer and the conveyancer lodging the application will be the buyer’s conveyancer. The certificate might then be signed by the seller’s conveyancer and passed on to the buyer’s conveyancer; alternatively, the buyer’s conveyancer, having been satisfied on completion that the deed was duly executed, might sign the certificate, bearing in mind its qualified terms.

A conveyancer is not precluded from giving the certificate because they have signed the deed themselves on behalf of a party, acting under a power of attorney.

The registrar will rely on the conveyancer’s certificate lodged with the application. Any audit report or certificate of completion issued by the platform must not be lodged with the application but should be retained. It may contain personal data and would be open to public inspection.

13.4 Deeds that can be signed electronically

HM Land Registry will, for the time being, accept for the purposes of registration the following deeds that have been electronically signed in accordance with the requirements set out in Our requirements.

• 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.

• Equivalent deeds in respect of unregistered land.

• An assent of registered or unregistered land.

• A power of attorney other than a lasting power of attorney (see Lasting powers of attorney).

• We will also accept a deed of substituted security in respect of registered land, incorporating a discharge or release and a grant of a new charge, that has been electronically signed in this way, even though the discharge or release will not be in form DS1 or form DS3, provided there is nothing to prevent the deed from being regarded as sufficient proof of satisfaction of the charge (rule 114 (4) of the Land Registration Rules 2003).

13.5 “Mixed signing”

If it is necessary for one party to a deed to sign in wet ink (either in the conventional way or as part of the Mercury-signing process) and another to sign with an electronic signature, this can be done by way of counterpart deeds (see Counterparts). Similarly, it is open to parties to sign counterpart deeds each using a different electronic signature platform provided that, in each case, the requirements set out in Our requirements are observed.

13.6 Amendments to electronically signed deeds

It should rarely be necessary to amend a deed after it has been executed. The following is interim guidance on how this might be done where the deed has been signed with electronic signatures; it is pending the outcome of a more thorough review by HM Land Registry.

One option is for the executed deed to be printed out and amendments made to this print-out. The print-out should have an endorsement added at the start reading along these lines: “The electronic deed of which this is a print-out is amended this day [date] as follows.”

If a party has not consented to an amendment and the amendment is ‘material’, it is unenforceable as against that party. Hence, with material amendments, the amendments must be countersigned by the parties. An amendment is material if it is “potentially prejudicial to [a party’s] legal rights or obligations under the instrument” (Raiffeisen Zentralbank v Crossseas Shipping [2000] 1 WLR 1135).

If an amendment is not material, the endorsed print-out need only be amended by an individual conveyancer acting for one of the parties and adding their signature; the conveyancer will also need to confirm that they have their client’s authority to do this. This confirmation can be given on the endorsed print-out, in a separate document or by selecting the appropriate option in the notes box on the portal. An amendment is not material if it has “rendered express, or had no effect upon, in the sense of adding nothing to, what the law would otherwise provide or imply” or it “merely corrects [an] error in description in accordance with the original intention” (Raiffeisen Zentralbank, above).

If it is unclear whether an amendment is material, the prudent approach would be to proceed on the basis that it is and have the amendment countersigned by the parties.

The electronic deed and the print-out (and confirmation from the conveyancer, if applicable) are then lodged with the application. In the portal, the lodging conveyancer should click on the first certification (“I/We certify this attachment is a true copy of the original”) if they hold the original signed and endorsed print-out; they should click on the second (“I/We certify this attachment is a true copy of a document which is certified by a conveyancer to be a true copy of the original”) if another conveyancer in the transaction holds the original signed and endorsed print-out and has sent them a copy which they have certified to be a true copy.

Another option, whether the amendment is material or immaterial, is for the parties to execute a deed of rectification or variation.

13.7 The future

We are currently working on how we might allow conveyancers to rely on section 91 of the Land Registration Act 2002 in carrying out transfers and other dispositions, apart from just certain charges (digital mortgages) as at present: this should avoid the need for dispositionary deeds.