As from 4 May 2020 the Land Registry has amended Practice Guideline 8 on the execution of documents (new section 12) in relation to the admissibility for registration of deeds and documents executed by virtual means.

Up until 4 May 2020 the Land Registry would only accept documents for registration that were either originals or were certified as true copies of the original. This latter approach required the certifier to have had sight of the original wet ink signature document. Due to social distancing restrictions and office closures this became problematic.

Below we summarise the new process to execute documents and deeds virtually.

Steps towards the virtual execution of documents

As from 4 May 2020, the Land Registry will accept a deed or document that has been executed ‘virtually’ in accordance with Option 1 of the methods for virtual execution of deeds and documents set out in the Mercury case (R (on the Application of Mercury Trust Group Limited and another) v HMRC [2008] EWHC 2721 (Admin)).

This method of execution requires the signature page to be signed in pen and witnessed in person (not via video call). Each party will then send a single email to their conveyancer, with the final agreed version of the document and a scanned or photographed copy of the signed signature page. This process involves 8 distinct steps which are set out below.

• Step 1 - Final agreed copies of the transfer are emailed to each party by their conveyancer.

• Step 2 - Each party prints the signature page only.

• Step 3 - Each party signs the signature page in the physical presence of a witness.

• Step 4 - The witness signs the signature page.

• Step 5 - Each party sends a single email to their conveyancer to which are attached the final agreed copy of the transfer (see STEP 1) and a PDF/JPEG or other suitable copy of the signed signature page.

• Step 6 - The conveyancing transaction is completed.

• Step 7 - The conveyancer applies to register the disposition and includes with the application the final agreed copy of the transfer and the signed signature page or pages in the form of a single document.

• Step 8 - The application is processed by HM Land Registry following standard operating procedure.

Please remember that the conveyancer acting for the other party will need to agree to this method of execution beforehand and is under no obligation to do so. We would recommend an early discussion on this topic to reach consensus.

Certification

Once the deed or document has been virtually executed in accordance with the steps above it will need to be certified in the usual way before it is uploaded to Land Registry’s electronic Document Registration Service. Alternatively an application can still be made via post.

Additional requirements for completing property transactions

It is also important to note that if you are intending to complete a property transaction using this method you will need to amend the Law Society Code for Completion by Post 2019 and specifically the undertakings given in relation to the documents held and the delivery of documents following completion. If you are exchanging documents by virtual means please also remember that the Formulae for Exchanging Contracts by Telephone will also need to be revised.

Timeline

The above measures are currently intended to be temporary and will continue to apply until further notice and we await confirmation from Land Registry as to whether there is any intention to make these measures permanent. We would suggest that before using this method of execution you check whether the Land Registry has made any announcements or revised its guidance on whether this mode of execution continues to be permitted.

Conclusion

The amendments to Practice Guideline 8 allow for scanned documents to be emailed to the parties’ conveyancers, and therefore mitigate the difficulties around executing documents posed by COVID-19. However, the new measures are intended to be temporarily in place, therefore you are required to check with the Land Registry before starting a new process.

How Capsticks can help

Our Housing & Regeneration team, one of the largest in the country, advises on all types of development transactions from forward funded schemes, section 106 developments and stock rationalisations to plot sales and general asset management work. We are experts on all aspects of planning law including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and all general planning law matters.

If you have any queries around what's been discussed in this article, and the impact on your organisation, please speak to Spencer Vella Sultana or any of your contacts at Capsticks to find out more about how we can help.