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In so many respects, lockdown and social distancing have proved to be catalysts for change – in the large part for the better and long overdue.
Now, in a move that will meet with widespread approval, Mike Harlow, the Deputy Chief Executive and Deputy Chief Land Registrar at HM Land Registry (“HMLR”), has announced they will soon accept witnessed electronic signatures. “At a time when most of us are working from home, printing, posting and scanning can be a pain” he said.
In addition to electronic signatures, Mr Harlow said HMLR will also begin working towards accepting digital signatures.
Electronic and digital signatures – what’s the difference?
Electronic signatures will replace traditional “wet” signatures, meaning a document that has to be signed with pen and ink and witnessed contemporaneously, can instead be signed electronically.
A digital signature is, from a legal perspective, an entirely different beast. It is more secure than an electronic signature as not only will the signatory have been through a process to positively identify them, the document itself is also encrypted so that it cannot be altered, thereby negating the need for a witness.
By virtue of provisions in the Land Registration Act 2002, the legal framework for HMLR to accept digital signatures has long been in place, albeit dormant. However, advances in technology means their use is now far more practical and straightforward than they were when the Act came into force almost two decades ago.
Draft practice guidance
Recognising the multitude of issues that lockdown would present, early in the pandemic HMLR brought together representatives from the legal profession, estate agents and regulators to look for practical solutions. In relation to electronic signatures, the result is draft practice guidance, upon which they have invited comment by 18 July 2020. A final version is expected to then be published within weeks.
As it stands, the draft guidance suggests the following will need to be satisfied before electronic signatures will be accepted:
- All parties must agree to the use of electronic signatures.
- All parties must have a conveyancer acting for them.
- A conveyancer is responsible for setting up and controlling the signing process through an electronic signature platform.
- The conveyancer who lodges the application does so by electronic means and includes with the application a PDF of the completed deed. However, where the application is for first registration, a print out of the PDF, certified to be a true copy of the completed deed, can be lodged.
- The conveyancer lodging the application provides the following certificate: “I certify that, to the best of my knowledge and belief, the requirements set out in Practice Guide 8 for the execution of deeds using electronic signatures have been satisfied.”
Mr Harlow’s announcement contains more than a strong hint that further change is on the horizon. “Achieving a long-term, sustainable and secure means of signing property transactions would be a significant component of a wholly digital conveyancing process” he said.