Signings are increasingly carried out electronically. However, in some cases you should use wet ink signatures.
Electronic signing and exchanging options include:
- return by email of the entire document and signed signature page
- return by email of only the signed signature page
- creation of a pre-signed signature page before completing the document
Telling other parties
If you plan to use electronic signatures or emails, you should get approval from everyone involved. You should make it clear to them that the document does not contain a wet ink signature.
Types of document
The signing option you use depends on the document type.
Deeds and real estate contracts
You should return the entire document and signed signature page.
Guarantees (not executed as a deed)
You can return only the signed signature page or pre-signed signature page.
Guarantees can be stand-alone or in simple contracts.
To use a pre-signed signature page, there has to be clear evidence that the attachment is authorised by:
- the signatories
- their lawyers, or
- someone else authorised by the signatories
This evidence can include an email exchange.
An authorised signatory must:
- be available remotely, for example online, at the time of the signing or closing
- understand the contents of and approve final documents
- sign any documents or authorise the use of a pre-signed signature page
These can usually be formed without any signature, for example by an exchange of emails showing appropriate intention.
- show an intention to contract, not just the expectation
- include the guarantor’s name, with the intention that it is a signature, contained in the body of the email
Wet ink signing
Some documents must be signed with wet ink (not electronically) for legal formality reasons.
You may need wet-ink signed documents for registration purposes. For example, for:
- any other deeds that have to be registered at the Land Registry or Companies Registry
Wet-ink signed documents should also be used where you do not want to rely on the other party to produce wet-ink signed originals.
If you’re a solicitor responsible for registration, you need the other parties' solicitors, on closing, to send you the wet-ink signed parts of the documents. You’ll only proceed when you have the wet-ink signed documents, not when you have seen electronic images of them.
Other requirements and exceptions
If an area of law is covered by a regulator, for example conveyancing or giving power of attorney, there may be specific regulatory requirements you need to follow to make a signature valid.
For example, lasting power of attorney documents must be registered with the Office of the Public Guardian (OPG) to make them legal.
The OPG sets certain standards, with the Mental Capacity Act 2005, which need to be followed when agreeing a lasting power of attorney. This includes a ban on electronic signatures. The use of electronic documents for granting lasting powers of attorney is thought to increase the opportunity for fraud, duress and abuse.
Execution of documents by virtual means – explains how to carry out the different electronic signing options (parts 6, 7 and 8)
R (on the application of Mercury Tax Group and another) v HMRC  EWHC 2721
Koenigsblatt v Sweet  2 Ch 314
N Mehta v J Pereira Fernandes S.A  EWHC 813 (Ch)
Orton v Collins  1WLR 2953
Acts and statutes
Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 – gives signing requirements for a deed
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 – deals with deeds and their execution, land contracts and abolishes the rule in Bain v Fothergill
Section 74A Law of Property Act 1925 – consolidates enactments relating to conveyancing and the law of property in England and Wales
Section 44 and 46 Companies Act 2006 - deals with company law, directors' disqualification, business names, auditors and actuaries and amends Part 9 of the Enterprise Act 2002
Section 4 of the Statute of Frauds 1677 – prevents fraudulent practices