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https://hmlandregistry.blog.gov.uk/2017/02/08/executing-document-electronic-signature/

Executing a document using an electronic signature

Posted by: , Posted on: - Categories: Law and practice

HM Land Registry does not give legal advice but we are aware that practitioners want clarity about our policy and practice relating to electronic signatures (e-signatures) on documents and deeds.

The Law Society practice note on the execution of a document using an e-signature states that it is aimed at parties who wish to execute commercial contracts. It also includes a section suggesting that deeds may be executed and witnessed using e-signatures. We will not comment on the views expressed in the guidance note but set out HM Land Registry’s views here.

Deeds

Section 52 of the Law of Property Act 1925 requires that the legal estate in land or any interest in it must be conveyed or created by deed (apart from the limited exceptions listed in section 52(2)).

It is clear that the Law Commissioners when working on the Land Registration Act 2002 were not convinced that an electronic document with an electronic signature could be regarded as a deed without a statutory provision confirming that to be the case. The statutory provision is in section 91 of the Land Registration Act 2002. Section 91(5) confirms that an electronic document will be regarded for statutory purposes as a deed if it complies with the provisions of that section. The section applies when an e-document purports to effect a disposition of a registered estate, charge, or a noted interest, or is a registrable disposition.

As well as other conditions set out in section 91, the section provides that to be regarded as a deed the disposition must be of a kind specified in rules, and meet any other conditions included in the rules. The rules made under that section are currently the Land Registration (Electronic Conveyancing) Rules 2008.

Will HM Land Registry only accept e-deeds that satisfy section 91?

HM Land Registry will not accept an e-document with an e-signature as a dispositionary deed for registration unless it complies with the provisions of the 2002 Act and 2008 Rules. The electronic mortgage service for which the 2008 Rules were made is not currently in use, but Land Registry is working on a new digital mortgage service that will initially rely on the 2008 Rules. In due course we plan to make amendments to our Rules to allow for more electronic conveyancing transactions and registration services.

HM Land Registry expects the highest standards for the authentication of deeds relating to registrable dispositions, whether they are paper or digital. We intend to use our own purpose-built electronic signature solution for the authentication of the new digital mortgage.

Electronic signature web page headed by the service name, Sign your mortgage deed.
We set out the requirements for an electronic signature in the beta version of our digital mortgage web pages

The solution will provide an advanced electronic signature, which is defined in EU Regulation No 910/2014 on electronic identification and trust services for electronic transactions – (the “eIDAS Regulation”).

An advanced electronic signature must meet the following requirements (Article 26).

  1. It is uniquely linked to the signatory.
  2. It is capable of identifying the signatory.
  3. It is created using the electronic signature creation data that the signatory can, with a high level of confidence, use under their sole control.
  4. It is linked to the data signed in such a way that any subsequent change in the data is detectable.

Electronic signatures are not witnessed. Indeed it is not possible for an electronic signature to be physically witnessed in the way that a pen and ink signature can.

An electronic document is a collection of data in a computer system, and the electronic signature is another data string that is attached to it. The e-signature is applied to the data within a software system, or in a hardware security module, or some other computing device.

A person cannot witness that process. A “witness” might stand behind someone typing on a keyboard, and see some writing on the screen indicating that the person typing has electronically signed the document shown on the screen. But the “witness” but could not be sure that the signatory had electronically signed the data that the screen purports to represent, or that the screen represents the data that is intended to be signed.

That is why electronic signing relies on trust services, which provide certification as to the identity of the person who is applying the electronic signature, and protection to the integrity of the data that has been signed. Consequently, section 91 of the Land Registration Act 2002, which deals with electronic dispositions for the purpose of land registration, refers to e-signatures being certified (s.91(3)(c)).

Certification of an electronic signature takes the place of witnessing. It effectively transposes a notarial model into the digital environment.

Electronic identification and trust services for electronic transactions

The title of the eIDAS Regulation makes it clear that the questions of establishing the identity of the persons signing documents electronically, and establishing the integrity of the document, are fundamental to the use of e-signatures. In other words they serve a similar function as a witness in the paper world. A reading of the definitions section of the Regulation (Article 3) shows that establishing the identity of someone purporting to electronically sign a document is vital to establishing its evidential value.

To understand certification it is useful to have a basic knowledge of the eIDAS Regulation, since it sets the standards, responsibilities and liability for trust service providers and for e-signatures throughout Europe. Even when Britain leaves the European Union it appears that the Regulation will become British law under the proposed Great Repeal Bill announced by the Prime Minister.

HM Land Registry will be a trust service provider, certifying the identities of those who are signing digital mortgages, and providing the e-signature for them. The trust certificate issued with the e-signature links the signature data to a natural person and confirms their identity.

For the verification of identity, HM Land Registry currently proposes to use a combination of the information provided by the conveyancer together with the GOV.UK Verify service.

More information on the new Digital Mortgage service will be issued in due course.

Contracts

HM Land Registry does not register contracts but can note them in the register of a title affected by the contract, pursuant to section 32 of the Land Registration Act 2002. Section 32(3) confirms that the fact that an interest is the subject of a notice in the register does not necessarily mean that the interest is valid, but does mean that the priority of the interest, if valid, is protected for the purposes of sections 29 and 30 of the Act.

If a contract, signed using electronic signatures of whatever kind, is sent to HM Land Registry with an application to note it, we can enter a notice on the affected register, provided other requirements for the entry of a notice are satisfied. The proviso in section 32(3) applies equally to both agreed notices and unilateral notices (the main difference between them being the procedure for cancellation).

In the event of a challenge to an electronically signed contract it would be for the court to decide on its legal effect if the parties could not agree. If the document was found to be invalid there would not be a mistake in the register, since the validity of the document is not guaranteed by noting.

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38 comments

  1. Comment by Alexis posted on

    Really useful, thanks

    Reply
  2. Comment by adamh posted on

    Alex - I'm afraid not. A digital transfer is something planned for the future but it's a 'wet' signature that is required currently

    Reply
  3. Comment by habib posted on

    Can a physical signature still be undertaken in another country? My partner is abroad and I am in UK. Therefore, I will sign here in front of a witness and she will sign abroad with a witness - will this suffice or does she need to be physically present in this country?

    Reply
    • Replies to habib>

      Comment by adamh posted on

      Habib - as far as I'm aware where you are when you execute the deed is irrelevant. How would anyone know?

      Reply
      • Replies to adamh>

        Comment by habib posted on

        Well because I accidentally told my lawyer that my partner is out of the country while I am here.

        Reply
  4. Comment by ALoadofBoll posted on

    I'd like to point out that the Rules of S.95 as set out in the Land Registration (Electronic Conveyancing) Rules 2008 only apply to a charge over the property.

    They don't address any question of Rules when it comes to normal transfer from one owner to another, as to how this is done to the satisfaction of Land Registry.

    It does seem as if the Land registry on the one hand wants to use the GOV.UK Verify service, on the other hand being required to have certification to the Electronic Transactions Regulations 2016, where the Verify service isn't registered as a service provider?

    Seems a little mixed up to me...

    Reply
    • Replies to ALoadofBoll>

      Comment by adamh posted on

      ALoadofBull - we are unclear as to what it is you are really querying here and wondered if you could perhaps clarify further?
      We have approved the comment for others to note but have removed the link to a third party website.

      Reply
  5. Comment by Ian posted on

    David - I apologise for the delay in replying. Your points are being considered and we hope to be in a position to respond on Monday.

    Reply
    • Replies to Ian>

      Comment by Ian posted on

      David - further to my earlier message we are now in a position to give the following response:

      As mentioned in the article, we will not comment on the views expressed in the Law Society’s practice note and cannot give legal advice. But, from HM Land Registry’s perspective, section 91 of the Land Registration Act 2002 allows the registrar to accept a document executed electronically as a valid registrable deed if (among other things) it makes a disposition of a kind that is specified by land registration rules, and the e-document and e-signature complies with those rules.

      As explained in the article, we have the current set of Land Registration (Electronic Conveyancing) Rules 2008 (made under section 91(2)) that we can rely upon for the introduction of our new digital mortgage service. Those Rules mean that the e-document and its e-signature must be in a form provided by the Registrar, and allow only for simple mortgages. We are currently testing a new version of a digital mortgage, and hope to be able to release it for use soon. Proposed amendments to the Land Registration Rules 2003 would enable us (when circumstances allow) to widen the range of e-documents (with e-signatures) that can be accepted as deeds under section 91(5).

      Reply
  6. Comment by Sarah posted on

    Can a disposition which needs signed be signed with an electronic signature?

    Reply
  7. Comment by Kris posted on

    Greetings

    I'm not sure if this is the best place to ask this question.

    In 2009 my ex and I were divorced. At the degree nasri stage, he mentioned to the judge he has no right in a property we bought in Dec 2008 as he did not contribute towards it neither did he moved in with me.
    I have leaved in the property and continued to pay the mortgage until now.
    I have not have any contact with him ever since then and don't know his whereabout.

    I now want to remortgage but seems imposible if I don't find him to sign his transfer to me.

    Is there anyway to go about it please?

    Reply
  8. Comment by Kris posted on

    Thanks for the reply. However, every means has been tried together with the current lender to trace him to no avail.
    Since there is a legal document (degree nasri and abosolute) is there no way the court can sign on his behalf?

    Reply
    • Replies to Kris>

      Comment by AdamH posted on

      Kris - a judge can but you would need to convince them that he can't be found/able to do it.

      Reply
  9. Comment by Kris posted on

    Many thanks for your reply

    Reply
  10. Comment by Kareen posted on

    I think electronic signatures are more efficient than wet signatures. Important documents are safe when using this signature. Also using a Digital Signature will Speed Up Your Work in Signing Documents. And this can save paper. Thank you for the article. stiply.nl

    Reply
  11. Comment by Raka Adhyatma posted on

    thank you for writing this article. I think digital and electronic signature are very strong document status. we need to trust the process to make it digital. thank you for sharing <a href="https://www.stiply.com/api">stiply.nl</a&gt;

    Reply
  12. Comment by ABF posted on

    Hello, I need an ex-partner, currently residing overseas and unwilling to post a wet signature, to sign a TR1 for my solicitor to action with Land Registry - can my solicitor accept a photocopy of the TR1 and/or if it were done via e-signature (such as DocuSign et al)? This is urgent so any help would be very helpful and appreciated.

    Reply
    • Replies to ABF>

      Comment by ianflowers posted on

      ABF - Hello. With the exception of our digital mortgage service, we does not presently accept execution or signing of deeds by electronic signatures. The TR1 must be signed and witnessed manually (sometimes known as a wet-ink signature), and not by facsimile signature. I am sorry we can't be of assistance but hope this is helpful in confirming the position.

      Reply
      • Replies to ianflowers>

        Comment by ABF posted on

        Hi Ian thank you for the swift response. So if the document was signed and witness with a wet signature then emailed to my solicitor to upload to LR would this be acceptable?

        Reply
        • Replies to ABF>

          Comment by ianflowers posted on

          ABF - You're welcome. Unfortunately not. Your solicitor will need to be in possession of the original document with a 'wet' signature, before they can upload the document via our electronic business channel.

          Reply
          • Replies to ianflowers>

            Comment by Mark - Austin posted on

            Given the covid 19 situation, are we now able to scan the 'wet' signature documents to the conveyancer for TR1 forms?

          • Replies to Mark - Austin>

            Comment by AdamH posted on

            Mark - that is not up to us so something you need to discuss with the conveyancer. They will need to certify the Transfer when they submit it so it is they who must decide what they will allow

  13. Comment by NATALIE BARONE posted on

    In the current climate of Coronavirus have adjustments been made so that an electronic signature is acceptable in place of a wet signature?

    Reply
    • Replies to NATALIE BARONE>

      Comment by AdamH posted on

      Natalie - at this time, we are only able to accept electronic signatures for digital mortgages created and registered under a rule 54C Notice. We are currently unable to put in place additional arrangements to authorise electronic signatures for specific customers or for other dispositions. However, we are liaising with key stakeholders to explore other possible changes.

      The position set out in the ministerial statement on the conclusions of the Law Commission report on electronically signed deeds having legal force in England and Wales has not changed. This expressly excluded transfers and other registrable dispositions, and conveyances and other deeds triggering first registration. The Commission explained in its report that section 91 of the Land Registration Act 2002 “sets out a regime for the registration of electronic documents which are deemed to be deeds”, that the regime was now being implemented by land registration rules “enabling electronic conveyancing for registered estates and charges to take place, as and when specified by HM Land Registry.”

      Reply
      • Replies to AdamH>

        Comment by Craig Murphy posted on

        Hi Adam,

        Do we have an estimate on the timeline and when and how a solution will be communicated to the public, solicitors, banks and building societies?

        Reply
      • Replies to AdamH>

        Comment by Alan Riley posted on

        Adam. You say "section 91 of the Land Registration Act 2002 sets out a regime for the registration of electronic documents which are deemed to be deeds”. What about documents that aren't electronic documents e.g. paper documents that have been electronically signed, where a transferor has scanned in his/her signature, then the whole document is printed off and used for completion? As the Land Registry is accepting deeds signed via the Mercury signing approach, it must be difficult to hold out against other variants of execution? Alan.

        Reply
        • Replies to Alan Riley>

          Comment by AdamH posted on

          Alan - Not all forms of signing that might be capable, as a matter of law, of being valid will necessarily be sufficient for the purposes of registration. HMLR has to take into account the need to protect the integrity of the register and, at this stage, the only form of signing of deeds that involves scanned manuscript signatures and that we feel able to accept is the Mercury method as set out in Practice Guide 8. However, we are continuing to look into the issue of electronic and digital signatures and their possible use in dispositionary deeds lodged with applications for registration.

          Reply
          • Replies to AdamH>

            Comment by Alan Riley posted on

            Where 2 directors sign, is it permissible under Mercury for one to sign the execution page and then email it as a PDF to the other, who prints it out, signs it, and then emails that page as a PDF to the acting conveyancer? (Careful: one of the signatures is a facsimile...)

  14. Comment by Lucy posted on

    Hello, apologies if this has already been covered above - does the Land Registry accept electronic signatures on letters of authority permitting assignment of a Lease?
    Thanks for your help, Lucy

    Reply
  15. Comment by NeedsReformNOW posted on

    Why must the Land Registry insist on being entirely and ridiculously unreasonable when it comes to digital signatures and seals?

    If a PDF contract contains an electronic seal or signature that qualifies as "advanced" under eIDAS rules, said signature being certified by a CA or other provider that verifies their identity, why would it not constitute a valid deed for the purposes of the registry? How much more "integrity" do you need? Isn't the green tick on the signature panel in Adobe enough proof?

    The basis for refusal seems entirely arbitrary (not to mention, founded on an incomplete understanding of the operation of electronic signatures), and serves to monopolise its own solutions to the trust problems posed (e.g. the Digital Mortgage system, that is frankly too clunky and meandering to be efficient).

    The government and the registry are far too languid to adopt new technological solutions, and changes need to be made STAT!

    Reply
  16. Comment by Scott posted on

    Please can you consider updating your rules to push for the allowance of laws for electronic signatures to be acceptable on all land registry documents and be able to submit online.

    It is incredibly outdated and also dangerous in this time is of pandemic to enforce physical signatures when the rest of the world seems to be able to use e-signing and understand the need for flexibility.

    The UK government really needs to push this, its quite extraordinary that it isn't. Laws can be changed.

    Reply
  17. Comment by Steven posted on

    Can I submit AP1, UN1 etc signed using DocuSign?

    Reply
    • Replies to Steven>

      Comment by AdamH posted on

      Steven - these are application forms so may be signed with computer generated, typescript or facsimile signatures

      Reply

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