The Use of Electronic Signatures in Property Transactions


The Land Registry in England and Wales has confirmed from yesterday, 27 July 2020 and until further notice, it will accept witnessed electronic signatures for registration of certain deeds (including transfers, leases and discharges and releases). This marks a further step forward from the recent announcement that deeds which had been signed using the “Mercury signing approach” (essentially adopting electronic images of witnessed ‘wet ink’ signatures) would be accepted for registration.

 

This recognises the need for a more streamlined and dynamic approach to virtual conveyancing, which has been highlighted during the outbreak of the Covid-19 pandemic. The Land Registry acknowledged it had fast-tracked work on electronic signatures to help customers working away from the office, but noted that the use of electronic signatures goes beyond addressing immediate issues and is a vital component of the increasingly online process for buying property.

 

The updated practice guide at Section 13
(https://www.gov.uk/government/publications/execution-of-deeds/practice-guide-8-execution-of-deeds#electronic-signatures)
does not identify a preferred platform for obtaining electronic signatures, however the guidance stipulates several requirements, including:

  • All the parties agree to the use of electronic signatures and a platform in relation to the deed;
  • All parties must have conveyancers acting for them;
  • A conveyancer is responsible for setting up and controlling the signing process through the signing platform; and
  • Certain requirements relating to the signing and dating process.

 

The Case for Northern Ireland

There is already strong supporting evidence that a similar approach could be adopted in Northern Ireland.

 

The Land Registration (Electronic Communications) Order (Northern Ireland) 2011 (the “2011 Order”) has specifically validated use of electronic documents through an amendment to the Land Registration Act 1970 (the “1970 Act”). The 2011 Order further made provision for the use of ‘digital signatures’ in electronic documents created through the computer system operated by the Land Registry of Northern Ireland.

 

The Land Registry of Northern Ireland’s E-Registration platform is already well-adapted to the creation of electronic documents. Where an instance falls outside of the documents generated by the E-Registration platform, the 1970 Act (as amended) also states that applications can be recognised as ‘authorised dealings’ by a direction of the Registrar. There are various requirements in making such a direction under the 1970 Act, which includes consultation with the Law Society of Northern Ireland.

 

The Land Registry in Northern Ireland does not currently accept electronic signatures for registration. Given that the necessary statutory and practical mechanisms may already exist, is it time to follow the steps taken in England and Wales to implement this innovative approach?

 


While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.