4 May 2020 | Comment | Article by Caroline O'Flaherty
Since lockdown started, we’ve all been struggling with the issue of completing property transactions with original documents signed by our clients. Social distancing has naturally made this a challenge.
In many cases we’ve had to complete on the basis of scanned copies and undertakings that the originals will follow as soon as possible.
But, from today (4 May 2020) the Land Registry will accept transfers - or other dispositionary deeds - signed by “virtual means,” until further notice.
This was a proposal first put forward by the Law Society in a practice note in 2009.
So, eleven years on, and one pandemic later, we are now in the age of Mercury Signatures!
This is the term used to describe the process of capturing a signature page with a scanner or camera and emailing the image to the conveyancer. The signature must still be signed in pen and witnessed in person.
The recommended procedure is set out below and needs to be agreed between the conveyancers before the process starts:
- 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 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.
The application for registration can be made through the electronic document registration service. The combined transfer and signature pages can be scanned or uploaded as a single document. This single document is often referred to as a “Mercury PDF” because it is the form of signing settled on in R (Mercury Tax Group Ltd) v HMRC (2008) EWHC 2721 (Admin).
An application can be made in paper form with a copy of the executed transfer.
In current circumstances, this move by the Land Registry was perhaps inevitable but no doubt will be welcomed by conveyancers.
HMLR have however made it clear these changes are temporary and may be modified or withdrawn at short notice if, for example they cause an increased risk to the register.
About the Author:
I'm Caroline O’Flaherty, a partner in Hugh James’ commercial property department. I specialise in advising on complex development site acquisitions for the RSL and extra care sectors.
I provide disposal and acquisition advice to the Universities, further education and public sectors in relation to their portfolios and also negotiates commercial leases.
I work closely with the Hugh James property dispute resolution team, led by Robert Phillips and Iwan Jenkins in the construction team.