Electronic Signatures in Property Transactions
Welcome to this short series of blogs on electronic signatures in Property Transactions.
Electronic Signatures – Part 1
What are they?
In the first blog of the series, we will look at the types of electronic signatures and HM Land Registry’s requirements.
Before the Covid Pandemic, the Law Commission had already published a report on electronic execution of documents and HM Land Registry were trialling the use of electronic signatures for registrations, however, the national lockdowns expediated the requirement for conveyancers to be able to use electronic signatures in property transactions.
HM Land Registry have then published a practice guide (82 – electronic signatures accepted by HM Land Registry | https://www.gov.uk/government/publications/electronic-signatures-accepted-by-hm-land-registry-pg82/practice-guide-82-electronic-signatures-accepted-by-hm-land-registry) which sets out the requirements conveyancers must follow when registering documents which have been signed electronically. For the purpose of this blog, we will be considering documents that need to be registered at HM Land Registry but electronic signatures can also be used for signing general correspondence and for contracts (such as accepting terms and conditions), which do not need any form of registration.
What is an electronic signature?
There are two ‘types’ of electronic signatures for the purposes of property transactions and registration at the Land Registry.
These are: –
- Mercury signing; and
- Conveyancer-certified electronic signatures.
Mercury signing requires: –
- Each signatory to be represented by a conveyancer (unless the signatory is a conveyancer);
- Parties agreeing to use the Mercury signing process;
- A conveyancer emails the document to the signatories and they then: –
- Print the signature page only;
- Sign the signature page and date. They should also add their full name beneath their signature, if it has not already been added;
- Send an email to the conveyancer which has attached to it the document and a PDF/JPEG or other suitable copy of the signed signature page;
Following the above steps, the conveyancer can prepare a single document made up of the document and the signed signature page. Once completed, this is used for registration at HM Land Registry.
A conveyancer-certified electronic signature requires the use of an operating system or a platform (such as DocuSign) that manages the electronic signing process, including the creation of the electronic signature. There are several providers of such platforms and the Land Registry do not recommend a specific one.
For Land Registry purposes, a conveyancer-certified electronic signature requires: –
- All the parties to the disposition or other dealing, including any parties who are not signing, to be represented by a conveyancer;
- All the conveyancers involved agreeing to the use of conveyancer-certified electronic signatures – this does not, however, mean that they must agree to all the signatures being in this form as mixed signing is permitted, for example one party using wet ink signatory and one party using electronic signatures (provided that a signatory and their witness always sign in the same way);
- A conveyancer to be responsible for setting up and controlling the signing process through the chosen platform and they must: –
- upload the final agreed copy of the document to the platform;
- populate the platform with the name, email address and mobile phone number of the signatories and the witnesses. The details for a witness can usually be populated later (by the relevant signatory);
- highlight the fields that need completing/signing within the document and indicate by whom they are to be completed, setting out the order (so the witness is after the signatory whose signature they are witnessing);
- Use a platform that texts the signatories and the witnesses a one-time password (“OTP”) and the Land Registry require that the OTP must be a minimum of 6 numbers.
- Following completion of the signing process, the conveyancer dates the document (within the platform) and the conveyancer who lodges the application to HM Land Registry to register the document will need to include with their application:
- a PDF of the completed document; and
- a conveyancer certificate confirming that to the best of the conveyancers own knowledge the requirements set out in HM Land Registry’s practice guide 82 for the use of conveyancer-certified electronic signatures have been satisfied. The certificate needs to be dated and signed by an individually regulated conveyancer.
The second part of this blog series will consider the positives and negatives of using electronic signatures in Property Transactions.
If you would like to discuss electronic signatures in property matters further, then please contact the Keelys Real Estate team.
Emma Faunch is a Solicitor in the Keelys Real Estate team.