We noted the challenges of remote execution of documents for planning authorities at the beginning of Lockdown. The Land Registry’s Blog now includes draft guidance indicating that it will take the plunge and accept electronic signatures for registrable dispositions. This could help with planning and highways agreements, but further legal reform is needed to virtualise the whole process for authorities.
So what for planning?
This is the first time that the Land Registry will have accepted electronically signed registrable deeds. The blog is clear about the approach and the guidance helpfully sets out the process.
Although planning agreements generally will not be registrable, the Land Registry’s process would be a belt and braces way to approach planning and other agreements.
The main steps are:
- The ‘execution set’ agreement is uploaded to a digital platform (e.g. DocuSign) by a conveyancer
- Signatories use two-factor authentication (including a one-time passcode sent by text) to electronically sign in the presence of a witness
- Witnesses follow a link to attest the signature they were physically present for – attestation must be one the same day, it seems (although this is not strictly a legal requirement)
- The deed is then dated within the platform.
The approach can be used flexibly and caters for a range of circumstances:
- Witnesses are not required where two authorised signatories are executing (and a seal is not being used)
- Where witnesses are required, physical presence is essential. The recommended execution block should read “I confirm that I was physically present when [name of signatory] signed this deed.”
- Only one party needs a digital platform licence – this is an important point; it is not necessary for authorities to pay for platform licences where one of the counterparties already has it (and a registered conveyancer can supervise it and undertake to operate it in line with the LR guidance).
The draft Guidance also helpfully confirms that counterpart agreements can be used too:
- A wet ink counterpart can be used alongside counterparts executed by digital platform;
- Each counterpart can be executed on a separate platform, as long as the guidance is followed for each.
Seals – still a problem
The challenge remains in relation to the use of seals – which continue to be mandatory for local authorities and which cannot currently be dealt with virtually. Further reform is still needed.