eSignature Legality for Client Information for Real Estate in United Kingdom

How to eSign a document: eSignature legality for Client Information for Real Estate in United Kingdom

good morning everybody you're very welcome to the meyerson's list webinar today the 23rd of April 2020 you will notice when you have joined today's webinar that your microphones have been placed on mute can I ask that you switch off your video cameras and keep your microphones on mute throughout the duration of today's talk if you look at the bottom of your teams panel you should see a menu which has got three dots on it to the right of it there will be a speech bubble that's your chat function I'll be inviting people to submit any questions that they have through the chat function and we'll pick them up at the end of the talk today's talk is one rotox that mayer solicitors have been running over this past number of weeks as a result of the issues arising from core vat19 and the idea is to assist you as best you can through these difficult times I'm the partner and the head of the real estate litigation department of Irishness Lister's and was the talk is going to cover a number of property related matters the principles apply more widely so let's deal with our agenda for this morning so the first thing we're going to look at is what does an electronic signature we're look at what then is a wet ink signature will move to deal with contracts and deeds and then witnesses attesting the signature in a deed and then we'll pick off statutory declarations affidavits that administering those before we move to questions and answers session and so begin by looking at what an electronic signature is well the electronic signature is something that's been around for quite a while in September of 2019 the Law Commission report titled electronic execution of documents had sought to recognize use of electronic signatures across the board having consulted with various stakeholders and the government in very hushed and rust form in March of this year adopted what the law commission's recommendations were and effectively an electronic signature is something that we probably have used at some point in time when we may be accepted a couriers delivery where we have paste our finger on a stylus or use the stylus that are saying something that the courier is given to us that's just one example of it another example of the electronic signature is copying pasting an image of your signature into the document or even typing your name at the bottom of the document and more recently people are using electronic signature platforms and Adobe have an example of that and these are more secure and those are just one of the number of ways in which you can use an electronic signature so when I talk about electronic signatures and signatures generally you can say that a signature includes an electronic signature when we talk about using of electronic signatures and documents there's one important point that we need to always bear in mind which is that if we're going to be using a signature electronic form for a company the company's articles must not prohibit the use of an electronic signature and that's really important so if your company has articles to check them if you're going to be excluded from using electronic signature then the company needs to be aware of that and they the officers are going to be executed any documents of signing any doctors need to be aware of the prohibition the second thing that I want to mention relation to electronic signatures which is often overlooked is if there are multi jurisdictional considerations applying to your contract then you need to bear in mind that not every jurisdiction will recognize an electronic signature it's okay if your contract expressly provides that the laws of England and Wales will apply but I've actually jurisdictional elements of your contract or such that isn't true then you need to check with the local law that is applicable to your counterparty in relation to whether or not they can use electronic signatures to sign their documents so let's move on now to what most of us will recognize as a conventional signatures no one is a wedding signature to distinguish from an electronic signature and what a wanted point out is the we will not be looking at wills and we will not be looking at lasting parts of a journey those are not covered in this talk and they will be covered in a separate talk by one of my colleagues it will be giving the salmon or again by web link today at 2 o'clock and for those who want to join that you can look out for the link to that in the chat functions or alternatively you can download the video and watch it at your leisure after at this afternoon one of the other points that I want to mention is that when it comes to register fill distance on a Land Registration Act of 2002 they absolutely undies and require and will not accept anything other than a wet ink signature so if you're dealing with dispositions which have to be registered with the Land Registry you must have a wet ink signature in the electronic execution of documents law Commission report the Land Registry had been consulted in this point and we're very forthright that electronic signatures were not acceptable in relation to dispositions that were to be registered there is one exception to this I'm not as digital mortgages so for every other disposition which is to be registered you need to have your wet ink signature some things with electronic signatures on wet ink signatures as concepts and we're gonna see how they now apply so we're gonna look at the first thing which is contract and I some people may have seen in documents where people have to fix a signature by bead or underhand and on a simply just contract simple contract will completely deed next but we'll deal with contract first now I want to unpack the issue of contracts into two categories the first is where there is no requirement for a date and there is no requirement for there to be a wet ink signature now I've put on screen a list of examples which you may come across in practice so if your contract says that it requires you to have a wedding signature or to be executed by date then you can't do it by contract and you can't do it by electronic signatures that's the first thing to look go for but the other examples are where you have a license talk you pray whether it the least for less than three years and where that least does not contain a register bill disposition such as an easement so bare that little tripwire in mind that if you have a lease no matter for how short if there's a registerable disposition within it such as the grant of a lease then it must be by wetting signature landlords consents which are not mandated in a lease for example to be given by date so if it is simply a kiss that landlord's consent must be obtained in writing then you can have an electronic signature and you can also have it by a simple contract and then also you've got contracts for sales and purchases which is what we often see and encounter or races the second category is where there is no requirement for a date but there is a requirement for a wedding signature and the example that we'll give on the screen there is UK tax filing albeit the revenue have temporarily so they will accept for short period of time electronic signatures you also have transfer of intellectual property rights stock transfers and agreements which require variations to be in writing and signed under hand so those are the examples where you'll have to have a wedding signature now we'll move to talk to deeds now it's important that we again unpack this so you've got a deed where there's no requirement for a wedding signature and where there is a requirement for a wedding signature and again you'll see the examples on the screen so if you have to enter into a deed and I say have to rather than choose to then if you're entering into a simple deed there is no requirement for the date to have a wedding signature a lot of people will assume that a date has to have a wedding signature but that is not correct you also have no requirement for a wedding signature and a deed where there is a lease for less than seven years and again if there's a rentable disposition in it such as an easement then you must have my wedding signature that's the tripwire they talked about earlier a man landlord consents where the deed is mandated to be obtained so you may have a situation where you're not to assign or carry out alterations without the landlord's consent in writing by date and there you'll have to have the deed rather than the simple contract we talked about earlier the second impact point which was where there's a requirement for the date but to have a wedding signature and this is the one where everybody defaults to because they think a deed must be in the wedding signature form but it's only in certain circumstances that we require that and that's where there's at least for more than seven years at least for less than seven years but where there's the least concerns that register will disposition such as these and we talked about charges that's an important one charges by way of legal mortgage and then other dispositions which require some registration at the Land Registry and there's those are just examples so when days are being entered into they must have the person making the deed witnessed or as we refer to attested now there's a number of ways that you can do this and in the current climate were social distancing and people may not be readily available to come and witness deeds the first question I'll ask is do we need to have it done by date because if we don't need it by date then we can do it by contract there's no need to have anybody testing the signatures but if we do have to do it by date and other way around having it to be witnessed so the first thing is if a company is executing the date as opposed to an individual executing a deed we look at it in a different way than if it was an individual so let's look at the companies first so companies can sign it they buy one of its directors and the presence of a witness and I want to leave her the point here is that there is absolutely no requirement for that witness to be independent it's just so long as they are not a party to the date so if it's the case that in a household a husband and wife and one of them is party to the seat and the other is not then the other spice can witness the signature of the other now there may be ways around having to have anybody witness the deed and the way you can do that is if your article is a lie it or your resolutions your past you can have director in once a country or you can have two directors sign the date there's no need for it to be witnessed and just so that you're aware again these things can be done sequentially it's not the case that the directors have to do it at the same time or the director and the secretary has to do it at the same time so let's move to look at individuals individuals are slightly different than companies because the deeds themselves have to be attested by the witness who is physically present and this is causing a problem because the physical presence of the witness is there and it cannot be moved at the moment we're waiting for guidance to come out as to whether or not there's going to be any departure from the requirements for those attesting signatures and age to be allowed to do it remotely and not present the answer is no you cannot witness a date remotely you must be physically present but again we're back to the scenario where that person who's the testing of her witnessing signature doesn't have to be independent one of the points that I wanted labor in this is that there are a number of articles that are right there which they're suggesting that people can attest these aids by video link that is wrong and the days will be void if there is a challenge unless a wedding signature is expressly required in relation to the date for the reasons we talked about earlier then electronic signatures will be perfectly fine and not a place that but with those here signing the date and those you're testing it stops tree decorations and affidavits I'll refer to start street decorations because the principles in relation to administering statutory declarations and affidavits are the same and it's customary that the person who's making the declaration the solicitor who's administering that statutory declaration are physically present in the same room that's cost them there's no statutory requirement for it but over the past 120 years since the legislation came in that is how it has been adopted there's no current case law which suggests that we can depart from that and there is no guidance yet circulated which tells us we can depart from that the Law Society took down from its website guidance last month in relation to whether or not those who administer the statute declarations and affidavits could do it remotely and we're waiting for them to finalize and put back on the website the guides are not and I checked just before we started this conference this morning's weather that guidance had been updated and this hasn't they're still there's no guidance on the Law Society's website it's not necessary for the solicitor administering the statutory declaration or affidavit to actually witness the person who is signing is physically so as long as the person who has presented it for the administering of the statute declaration the Sinister can administer it they're not have to see them physically sign it also a solicitor with their clients authority can attend another solicitor and ask them to administer the statutory declaration so it's not a strict requirement the person who is making the stance to Jerry declaration has to be the one in attendance now that takes us to the end of the webinar talk this morning I appreciate that there's a huge amount of information that I just given to you and that I tried to compartmentalize it into a number of categories one is electronic signatures which can be you unless the wet egg signature is required and there are certain exceptions as to when wetting signatures are required we've also looked at contracts and dates and whether or not actually you need to deed in the circumstances and also when it comes to deeds the issues in terms of witnessing it and how we distinguish between companies and individuals and finally we've looked at statutory declarations and affidavits and the administering now if you wish they ask any questions by all means do as I say there's a speech bubble to the right of your three-dot menu at the bottom of your team screen if you could populate your questions in that chat function I'll go through them now and address them as best that I can if you can't think of any questions no or you want to reuse any things separately by all means you've got my contact details on the screen and please reach out to me if you think that you've got a question to ask so let me have a look to see if there are any questions have been popular just bear with me so we have a question here which is from Louise it says what is the difference between a deed and a contract yes that's that's a brilliant question and so a straight forward contract is what most people will enter into a regular basis day in day out and what typically happens is the parties to agree the terms and they will pay sum of money over in exchange for a good or service that's the typical simple contract and it can be done in writing or it can be done too early and they flow from one party to the other is the supply of money in exchange for good or service that's what we call them the penetrated consideration no deeds are different than the sense that no consideration is actually required respect of either party so that's one of the things you can get around the second one is that under a contract a breach of it typically breach of contract claim as a statutory limitation which is six years there are certain exemptions to that in relation to knowledge but we won't go into that in today's talk but in deeds the limitation is longer it's 12 years so there may be certain circumstances where you will actually want to have a longer limitation window and you will actually keep your document by indeed so those are the two main examples of it one of the issues that you need to bear in mind is the witnessing and we talked about the witnessing of the of the deed and if you think about an individual entering into a contract they don't have to have a witness but entering into the date they will have and there are the certain rules in relation to the witnessing of it that we've talked through and also certain transactions are absolutely required to be done by deed so for example if we look at any conveyance of land or dispositions section 52 of the law of property act 1925 militates that those are done by deed there are other certain statutory examples and case law examples where you may be required to execute certain things by deed and not by contract and indeed some contracts themselves we talked about consents from landlords which militates they consent to be given by days so the contract or the deed itself may militate that other documents must be given by deed so those are the the me and distinguishing features between us and that's why I was trying to ensure that when we talked about contracts and deeds you understood the difference so that you know when you had to have witnesses and when you didn't so question can one party use an ordinary signature and the other party use an electronic signature okay so I want to want to unpack that question we're working on the basis that electronic signatures a can be used so we don't fall within one of the exceptions we talked about earlier and be that they can be used in the sense that there's no prohibitions by the company's article as if it's a company or multi-jurisdictional so yes then the answer that is yes as long as you have no those prohibitions you absolutely count so let me give you an example I could if I wanted to sign in wet ink and then somebody else saying it in an electronic signature indeed I might have to have my signature witness and the person who's witnessing may elect to go and use an electronic signature so yes yes you can you can absolutely use electronic signatures as wedding signatures and just to be clear when there's an electronic signature placed at a document that electronic signature is treated the exact C improves a wedding signature it's treated as an original so let's have a look at another one this comes in from Adam the form of electronic signatures is irrelevant so long as it relates to the content of the agreements the more statement on the question Deborah Ward litigation undertakes a dative assignment for proof sets proceeds in the clients financial remedy could it be I can't see the rest of your no could it be classed as a simple deed a deed of a right so when you deal with assignments there's a thing called an equitable assignment a statutory assignment is covered by one three six the law of property act in 1825 so if you're going to do a deed of assignment of a cause of action or something then you would have to do it by deed and there's no such thing as a simple deed I think you're asking is it perhaps maybe a contract if a deed is required for an assignment then you would absolutely need to have the deed and if it's simply a contract that you can do an assignment for yes you can I'm not sure if that answers your questions but Deborah if you if you want to follow up on that separately by all means you've got my contact details on screen there Jonathan Frank Sean I understand that a non-party to a deed can witness even if it's a family member I was always under the impression that it should be just unclick that so you can see it should be and depend whether she's not be relative to make sure that the witness was at arm's length in the event of a future dispute yes right so the way it works is there is absolutely no requirement for the witness to be independent absolutely not the only thing is that the witness cannot be a party to the deed no best practice is to have a completely independent third party witness see the signature but we're not in the word where we can readily available get access to witnesses so in the circumstances we find ourselves in this is to help us through the covert 19 lockdown at the minute as to how do we how to eat witnessed and therefore if the perished person that you've got is a member of the family will be if they're not a member of the party to the date yes you can't have them them saying this I knew it's not ideal I know that it's better practice to do it with an independent third party witness but we are where we are in terms of covert 19 and the the luxury have been able to go to third parties to have the witness things a lot of us don't have but some may have but a lot of us don't you see if there any other questions I think that's all the questions that various so far and as I say if you have any questions that you would like to raise not only the chat function by all means contact me we'll do our best as we can to help you out and if you have any other questions that you may think of which aren't relevant to the talk today by all means get in contact with us but I'd like to thank you very much for joining us on this morning's webinar thank you