Common Law in England and Wales has always been flexible in recognising a variety of different signatures, including that of merely a mark, initials or a printed name.
The law even accommodates signing on behalf of someone where a person is physically unable (i.e. locked in syndrome). So this poses the question: why are electronic signatures on deeds and documents in conveyancing such a topic for discussion at the moment?
What do the courts say about electronic signatures?
The courts have accepted that electronic signatures can include clicking a box to state “I accept” or a name typed at the bottom of an email. This decision is supplemental to that of the EU eIDAS Regulation which came into effect in 2016. Whilst this seems like a move in the right direction, there are several guidelines offered by the Commission in respect of the practicalities of electronic signatures for deeds and documents.
How can electronic signatures be signed in the presence of a witness?
The main concern for execution of deeds is being able to meet the requirements for deeds to be signed in the presence of a witness.
According to the Land Registry, electronic signatures cannot be witnessed. Whilst it is not possible for an electronic signature to be witnessed in the same way that a wet signature can, we do believe that this is possible however, other measures may have to be put in place to ensure this requirement is met.
One of the Commission’s recommendations include video witnessing which would be a more suitable option to overcome this hurdle. While simple electronic signatures may not always be appropriate, there are many examples of where, in conveyancing, they can be an environmentally friendly, cost-effective and an efficient option to sign paperwork.
Do electronic signatures meet the statutory requirements for a signature?
A Law Commission report into electronic signatures, issued in September 2019, found that:
“the combination of eIDAS, domestic legislation and case law means that an electronic signature is capable of meeting a statutory requirement for a signature if an authenticating intention can be demonstrated”.
Many electronic signature platforms are now able to establish evidence to prove the intention to enter into the contract or deed, should the validity of entering into such agreement be disputed. We interpret this as including deeds under English law.
What does this mean for us in light on the current coronavirus lockdown?
Provided electronic signatures are requested and sent by way of a secure link (i.e. pin protected or via secure cloud-based technology) we can see no real evidence of why these cannot be accepted in this day and age.
The option for electronic signatures has never been so important in light of the current lockdown situation and being able to facilitate this would mean conveyancing transactions are not relaying on the postal system for documents to be returned.
If you’re affected by any issues around electronic signatures, or require advice on any other property matters, our teams are here to support you via phone, email or video conferencing.
Get in touch with us today:
☎️ 023 8022 1344