Covid-19 has caused many people to move to home working.  Clients are concerned about getting legal deeds and documents signed so that business can carry on. Here we look at how electronic signatures and virtual signing can help you.

Electronic signatures (also known as “e-signatures”) can be used to sign certain legal deeds and documents. There are various web-based e-signing platforms available to generate electronic signatures, such as DocuSign and Adobe Sign.

You need to know when an e-signature will be acceptable.  Certain public registries, including HM Land Registry, will not accept or register electronically signed deeds and documents.

What is an electronic signature?

Electronic signatures include:

  • a scanned copy of a wet-ink signature;
  • a typed name or typed initials at the bottom of an electronic document;
  • a typed or handwritten e-signature generated by a web-based e-signing platform. Some platforms also allow signatories to upload an image of their handwritten signature. Others generate a certificate to verify a signatory’s identity, providing enhanced signature authentication.

Can all legal documents be signed with an electronic signature?

Simple contracts

Under English law, a simple contract (which is an agreement that does not need to be signed as a deed) does not need to be in a particular form. Therefore, simple contracts can be validly signed using an electronic signature.

Deeds and documents subject to statutory formalities

Deeds and documents can be signed electronically, provided that they satisfy any relevant statutory formalities.

  • Requirement to be “in writing”
    An e-signature can be used for a deed or document that needs to be “in writing” or “signed under hand”. For example, contracts for the sale of land must be “in writing” and an e-signature is acceptable .
  • Witnesses
    Deeds (including land transfers, charges and certain leases) that are signed by an individual, or by a director on behalf of a company, must be signed in the presence of a witness and be “validly authenticated”. This means that, even if the signatory uses an electronic signature to sign the deed, their witness must be physically present to witness this. Witnesses cannot authenticate a signature virtually; for example, by video conference. This makes it difficult to validly use electronic signatures for deeds that need to be signed in the presence of a witness while you are socially distancing.

HM Land Registry

While most deeds and documents can be validly signed with an electronic signature, HM Land Registry and the Land Charges Registry require wet-ink signatures on any hard copy deed or document submitted to them for registration. For online submissions, they require a scanned version of the hard copy deed or document to be uploaded with applications. You will need to timetable and post original documentation out for signature particularly now that many agents are also working from home.

Practical Tips – Prepare for the logistics of signing documents

  • Use electronic signatures where appropriate (see guidance above). Download web-based e-signing platforms such as DocuSign and Adobe Sign;
  • Two directors can sign a deed on behalf of a company instead of one director in the presence of a witness. There is no requirement for their signatures to be applied at the same time, so electronic signatures could be useful here;
  • Consider virtual signing of documents. Email the final execution copy to signatories. Ask signatories to return this by email with a scan of their wet-ink signature. It is easier to send the signature page as a separate document if there are multiple signatories; and
  • Communicate early on with your agents, solicitors and signatories.  Given that most of us will be working from home for the foreseeable future, we all need to adapt our ways of working. Check who has access to laptops, printers, scanners. Arrange for original deeds documents to be posted between parties for signature.

Freeths are advising clients on the practicalities of getting documents signed in challenging circumstances. Please contact Natalie Drought for more information

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.