Deeds – Signed, Sealed, Delivered?!

After having considered the potential to sign documents, including Deeds, electronically in our series of Blogs about ‘Electronic signatures in property transactions’, and noting it has been recognised that there is a need to review the general law governing deeds, and whether this remains fit for purpose (https://www.keelys.co.uk/real-estate/electronic-signatures-part-3/), Keelys’ Real Estate department were interested to see that the High Court has recently considered the attestation requirement for deeds in the matter of Euro Securities & Finance Ltd v Barrett [2023] EWHC 51 (Ch).

Section 1(3)(a)(i) of the Law of Property (Miscellaneous Provisions) Act 1989 provides that Deeds must be “signed (i) by ‘him’ in the presence of a witness who attests the signature” – https://www.legislation.gov.uk/ukpga/1989/34/section/1

In, Euro Securities & Finance Ltd v Barrett, the defendant guarantors (in response to a claim for the recovery of monies loaned) contended that the guarantee was invalidly attested as a deed because there were no words in the attestation clause, to make it clear that the witness had observed the act of signing, witnessed all three guarantors’ signatures or signed in the defendant guarantors’ presence. The guarantors wanted to prove that the deed was invalid because if it had been, claims under the guarantee would have been subject to a six-year limitation period (rather than the 12 year period applicable to deeds), which would have meant the claim for the recovery of monies loaned to the guarantors, would not be accepted.

In these particular circumstances, the guarantee had been signed by the defendant guarantors together under the words “signed and delivered as a deed by” and observed by a witness, who then signed in the space below, under the words “and witnessed by”.

The High Court, in determining whether or not the guarantee was properly executed (and therefore valid), considered the meaning of the phrase “in the presence of a witness who attests the signature” from the legislation and finding the attestation valid, held:

There is no requirement in the legislation for the attestation clause of a deed to use specific words and it was, therefore, enough that the witnesses had signed under the words “witnessed by” so it could be assumed that they were was present when the guarantors signed the guarantee;
Based on the evidence in the case and inferences drawn from the documents, the guarantors had signed the guarantee all together, and were all observed by a single witness, who also signed the guarantee to confirm they had witnessed their signatures;
There was no merit in the defendants’ argument that the attestation was invalid because while the legislation requires a witness who is present to observe the act of signing, and who attests to have done so by signing the deed as a witness, it does not require the witness to attest in the signatory’s presence (i.e. a witness could witness the signature of the signatory and then attest the signature at a later stage that day).

Although the above was the Court’s decision in this particular case, it is always best practise to ensure that any deed is signed in the presence of a witness who, at the same time as witnessing the signatory signing, also signs and writes their name, address and occupation. This would then (hopefully) avoid the need for a deed’s validity to be ‘tested’ in Court.

In summary, given that even electronic signatures need witnessing by a witness who is in the same room when a signatory ‘signs’ electronically and taking into account all of the technology advances allowing electronic signatures, it does seem that the whole law on the requirements for deeds should be reviewed.

Emma Faunch is a Solicitor in Keelys Real Estate team.