Guidance

Our practice on electronic signatures that was current between 7 September 2020 and 14 February 2021

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 would see the signatory adding their signature to a document on a screen.

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

Until further notice, 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 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.

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 parties’ conveyancers are advised to retain with their conveyancing file a copy of the completion certificate or audit report produced by the electronic signature platform (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 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.

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 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 – 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.

STEP 6 – Once the signing process has been concluded, the conveyancer controlling the signing process dates the deed within the platform with the date it took effect.

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 completed deed, can be lodged.

6.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.” 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 are at the time the deed is signed.

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).

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 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.