Proposed practice for the use of electronic signatures when working with HM Land Registry - Law Society response

On 4 May 2020, we welcomed HM Land Registry’s (HMLR) agreement to accept the ‘Mercury signing approach’ for certain deeds on a temporary basis.

The decision to temporarily accept Mercury signatures was accompanied by some temporary changes to requirements to make it easier to verify identity remotely in land transactions.

On 9 July, HMLR published a blog explaining its intention to accept both electronically signed ‘traditional deeds’ and qualified electronic signatures.

This response sets out our initial views on the draft practice guidance setting out the basis on which HMLR would accept electronic signatures – in this instance defined as those replacing wet ink signatures but still requiring witnesses.

Our view

Some of our key concerns related to witnesses and to signatories who are not known to the signatory at the point when these details are meant to be inserted in the envelope, or equivalent, on the relevant platform.

We also expressed a number of concerns about proposals relating to the conveyancer’s certificate. First we are not sure how they will know if the witness was physically present.

Even though the draft guidance suggests that it should be set out in the deed that the witness was physically present – how would the conveyancer know whether this was actually the case? Does a standard of ‘best knowledge and belief’ mean that this can be satisfied in these circumstances?

Next steps

After a very short consultation period, HMLR announced on 27 July 2020 that it would begin accepting electronic signatures.

Transfers of ownership of property, leases, mortgages and other property dealings can now be signed electronically, making it simpler and faster for people to move home. HMLR is now looking to issue its practice note on how digital signatures (those that fit the requirements of Qualified Electronic Signatures) can be used when working with it.