If a solicitor is working from home and wishes to avoid giving out their personal address, can they accept scanned executed documents from their client by email in order to complete a property transaction that is registrable at HM Land Registry?

If a solicitor is working from home and wishes to avoid giving out their personal address, can they accept scanned executed documents from their client by email in order to complete a property transaction that is registrable at HM Land Registry?

Produced in partnership with Shabnam Ali-Khan of Russell-Cooke

 

Current situation

In light of the coronavirus (COVID-19) pandemic, many solicitors and conveyancers are now working from home. As a result most documents such as leases and transfers are being sent to clients by email for execution rather than by post. Since the lockdown rules were slightly relaxed earlier in May there are more people physically going into work provided they do not need to rely on public transport for their journey. Therefore, some documents are now being posted out.

 

Potential problems in light of coronavirus

A key problem arises at the other end. How can a client execute a document if they are restricted by the lockdown? They may face difficulties finding an independent witness as well as issues leaving their home to post the document. This could be a serious issue if they are self-isolating. One of the questions practitioners are faced with is are such documents capable of being signed electronically?

 

Can a document be signed electronically?

HM Land Registry has been producing regular guidance during this pandemic to assist. Essentially a ‘wet signature’ will still need to be provided by all parties to deeds in relation to property transactions that are registrable at HM Land Registry. However, HM Land Registry has stated it will accept the Mercury signing approach which consists of the following steps:

• STEP 1: Final agreed copies of the deed are emailed to each party by their conveyancer

• STEP 2: Each party prints the signature page only

• STEP 3: Each party signs the signature page in the physical presence of a witness

• STEP 4 : The witness signs the signature page

• STEP 5: Each party sends a single email to their conveyancer to which are attached the final agreed copy of the deed (see STEP 1) and a PDF/JPEG or other suitable copy of the signed signature page

• STEP 6: The conveyancing transaction is completed

• STEP 7: The conveyancer applies to register the disposition and includes with the application the final agreed copy of the deed and the signed signature page or pages in the form of a single document

• STEP 8: The application is processed by HM Land Registry following standard operating procedure

 

What about witnessing of documents?

A witness will still need to be physically present when a document is being signed. A video call will not suffice for those purposes. This follows the Law Commission’s report: Electronic Execution of Documents (Law Com No 386) published in September 2019 which stipulates that the virtual or remote presence of a witness will not be accepted. However, there is no reason why the witness and the signatory cannot be separated by glass such as through a car window or a house window. This may help in situations where a person is self-isolating and unable to travel, although it will still be difficult as the witness will need to then add in their details. This could present problems.

 

Lockdown rules

Will the lockdown rules give rise to any issues as far as witnessing documents being signed? In England the rules have been slightly relaxed. Individuals are now able to meet with one other person from another household outdoors as long as they remain two metres part. Individuals are still unable to visit friends and relatives indoors. Therefore, having a document witnessed could be done outdoors, at a safe distance and providing the signature can be clearly witnessed. Alternatively, it can be done through glass as outlined above. The rules in Wales are still stricter at the date of answering this question. In Wales individuals will not be able to meet friends or family just yet. And it is not clear if signing documents or indeed witnessing them will be classes as an essential journey.

HM Land Registry guidance and lockdown rules will no doubt be changing again and practitioners should check online regularly for updates.

See Practice Note: Coronavirus (COVID-19)—implications for property.

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