Alternative ways for registered providers to execute deeds

Posted: 07/11/2024

Following the rise in employees and officers working from home, registered providers (RPs) have increased their use of powers of attorney to execute property deeds. However, as a result of HM Land Registry (HMLR) announcing in December 2023 that it would accept electronic signatures, there has also been an increase in the use of Docusign to execute property deeds.

Powers of attorney

RPs commonly appoint their solicitors to act as attorneys to execute deeds on their behalf using a power of attorney. Once the deeds requiring execution have been agreed, the RP will normally follow an internal approval process, and then confirm to its solicitors that they have authority to sign the deeds on its behalf, which are typically signed in ‘wet ink’.

Before granting a power of attorney, RPs will need to ensure that their governing document gives them the power to do so.  

Docusign  

Docusign enables deeds to be executed by way of electronic signature (without the need for a ‘wet ink’ signature). This is much quicker than both the traditional signature method, and power of attorney method. However, to ensure that these deeds are validly executed, the following points should always be considered.

Firstly, and most importantly, the RP needs to ensure that it is able to validly execute deeds using an electronic signature. If the governing document of the RP requires a deed to be sealed, then an electronic signature will not be valid unless the governing document is amended.

For HMLR to accept an electronic signature, there are specific conditions that need to be met to ensure its validity:

Representation
All parties to a transaction need to be represented by a conveyancer, even if they are not signing the deed. 

Process
The envelope must be created and controlled throughout by a conveyancer. 

Workflow: 
The following process must be used:

• Upload the deed: A conveyancer will upload the deed(s) to create an ‘envelope’, adding signatory details and assigning up to two witnesses per signatory. Witnesses can be specified when the envelope is created or nominated later by the signatory.
• One-time password (OTP) authentication: Both signatories and witnesses should undergo OTP authentication. This additional layer of security verifies their identities and prevents unauthorised access. The OTP is a text that is sent to the signatory or witness with a code that is to be entered when they log into the platform to sign the deed.
• Sign the deed: The signatory receives a secure link via email to sign the deed electronically where indicated by the conveyancer. The signatory will need to ensure they follow the instructions carefully.
• Physical presence of witnesses: When using an electronic signature for HMLR deeds, witnesses must be physically present during the signing process. This requirement ensures the authenticity of the signature.
• Completion: Once the deed has been signed and completion has taken place, the conveyancer will date the deed on the platform to finalise the process. Once done, a PDF copy of the deed can be downloaded and circulated.
• Certificate: A conveyancer will need to certify that the correct process has been completed and a copy of this certificate will be supplied to HMLR as part of the registration process.

A recent change to HMLR’s guidance means that the conveyancer no longer needs all parties to agree to the use of an electronic signature. This will make the process even more straightforward; however, there may still be some parties who are reluctant to use Docusign, particularly where they are responsible for registration and are unfamiliar with electronically signed deeds. In these instances, it may be necessary to use an alternative method, such as using a power of attorney.

Conclusion

These alternative signing methods can streamline the signing process by removing time consuming steps such as posting documents to and from solicitors. However, it is important to ensure that all requirements are complied with so that the execution of deeds on behalf of the RP is valid.

This article was co-written by Nick Martin, trainee solicitor in the housing team.

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