Recent moves and ‘next steps’ reflect not just the increasingly technological way of working but, importantly, the particular needs enforced by the pandemic – specifically, the social distancing restrictions and the impact on signing deeds.
HM Land Registry announced last month that it will now accept witnessed electronic signatures on deeds requiring a witness from 27 July. It has been accepting deeds signed using the Mercury signing approach (see below) since the start of May 2020 and this latest move is naturally the next step.
Electronic signatures on deeds will now be accepted for property transfers, leases and mortgages and other dealings involving property. Simon Hayes, the chief land registrar acknowledged that to accept digital signatures is “a keystone of a truly digital, secure and more efficient conveyancing process” that it believes is within reach.
In practice, obtaining an electronic signature essentially involves the conveyancer uploading the deed to an online platform. The platform then sends a link to the signatories who will complete the necessary authentication checks then ‘sign’ the document electronically. The ‘signing’ is done in the physical presence of the witness who then also signs.
When this is finished, the conveyancer is notified and they can then submit the completed deed to Land Registry along with their application for registration.
Note, however, platforms must have two-factor authentication to authenticate the signatories and the witness accessing the deed; and to provide assurance that unique individuals have signed.
Conveyancers are also required to certify that to the best of their knowledge and belief the requirements set out in the new section o the practice guidance (guide 8) for the execution of deeds using electronic signatures have been satisfied. Practitioners are therefore urged to read the updated practice guidance.
The Land Registry requirements relating to Mercury signings are also found in practice guide 8. For an effective Mercury signing, the signature must sign the signature page in pen and witnessed in person not by a video. The signature is then captured with either a scanner or a camera to produce a PDF, JPEG or other suitable copy of the signed signature page.
Each party must then send a single email to their conveyancer attaching the final agreed copy of the document together with the copy of the signed signature page.
But what of the risk of fraud? Land Registry has already acknowledged that covid-19 has highlighted the immediate need for an easy-to-use, modestly-priced, remote and digitally secure way for conveyancers to securely identify the buyers and sellers of a property.
One potential solution being considered is digital identity checking technology, for instance the use of cryptographic combined with biometric identity solutions (similar to the tech used in airports’ automatic immigration barriers).
Simon Davis, president of the Law Society of England and Wales welcomed the announcement to accept digital signatures. As for Land Registry’s tentative future plans, he says: “introducing full digital signatures that do not require witnesses and verify ID to a high level – should make transactions more secure and form a key part of the increasingly digital systems we hope to see in the near future.”
Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.