Essential Digital ID and Electronic Signatures Update 2021

Welcome to this presentation brought to you by myself, Stephen Desmond on behalf of data law. The subjects of our talk today will be land registry, digital identity standards and electronic signatures on deeds. We'll be looking at the new digital identity standards of the land registry which are designed to improve the accuracy in verifying the identity of parties to a convincing transaction. Will also see that if a container uses the standards which are prescribed by the practice note that we will look at in this presentation, then the Land Ministry will not take recourse against them if there had been any allegation of negligence in identity checking. We also look at the issue of electronic signatures and we'll compare electronic signatures with wet signatures on transfers that are scanned electronically. So there's a lot to get through. And we will start off first of all by asking the question whether or not paper identification is a superior method compared with the method of online verification. Just to look at a couple of quick cases if I may. First of all the PMP property case. And this was a conjoined appeal which also involves the dream var appeal convinces often remember the dream of our appeal. I'll have a look at the dream fart appeal and especially the steps have been taken by solicitors in the northwest of England to verify a client who's based overseas and who ostensibly had visited London to attend a sole practitioners offices and the client who turned out to be a fraudster who was selling a property in London That was worth more than £1 million Muslim mortgage. As I said, he went to a solicitor's office in London to have his identification documents verified. And as a result of this, the client provided to the solicitors who were acting on his competiting transaction. They were different to the sole practitioner in London and uh the client provided the conveyancing solicitors with copies of a driving license and a television license. Now first television license is not a source which the Law Society's AML practice note identifies as being useful for verifying at least UK based clients. And the other oddity about the driving license is that it only been issued a few days earlier on the face of the document and it was valid for just over three years. Now you ordinarily expect their driving license will have a fixed period of years, 10 years. For example, you wouldn't expect it to be three years and so many days. No other steps were taken to verify the client's identification. It's equally curious that this firm had a London office and didn't arrange to meet with the client When he said that he was in London. Anyway, what happened was, is on the sale of the property, The client instructed the conveyancing solicitors to send the whole of the net sale proceeds of more than £1 million pounds to this was a third firm called Dennings in London and Jennings was acting in the purchase of machinery and equipment from china and once that money was sent to china, it was never recovered. Pooran Singh, I was curious about this case. This was another case where the client turned out to be a fraudster. He wasn't living at the property and the property was vacant. No, a false british passport was produced to the seller, solicitors, but it wasn't that that caught this list is out. The sisters ended up being equally liable for the sellers losses. In this case, reason being was that's they have been provided with utility bills and bank statements for an address in Maidenhead. Now, what was curious about this was that the property itself that was being sold was in Wimbledon and the address for service on the register title to this property was in Cambridge Cambridge was the actual address at which the registered proprietor, Mr Dawson lived. And the sisters made no attempt to contact Mr Dawson care of his Cambridge address. And also the solicitors made no attempt to link the client with the property. Either the property being sold or that was which was being referred to on the title deeds. So you can see there was pretty serious failures by the solicitous concerned in carrying out their due diligence in both cases. The next section in this presentation is to consider the lender's requirements as regarding checking of identification. What I find surprising is that there are very different requirements for solicitors and licensed convinces, even though I would suspect that license convinces would probably in most cases want to follow the guidelines for solicitors and that's because the guidelines for solicitors are very specific. So let's talk about the solicitous guidelines in the handbook. So unless you personally know the signatory of a document says the handbook, you must ask the signatory to provide evidence of identity, which you must carefully check. You should check the signatories identity against one of the documents from List A. Or to the documents in List B. List A includes a full valid passport or valid UK photo card driving license. Let's be includes a firearm and shotgun certificate or a receipt ID utility bill which is Less than three months old. Remember you Need two documents if you are seeking a document from if your client is unable to produce a list a document. The humble further goes on to say that you should check that any document you used to verify signatories. Identity appears to be authentic and current and signed in the right place. You should also check the signatures, signature on any document being used to verify identity matches the signature, the signature on the document we require the signature to sign and that the address shown on any document used to verify identity is that of the signatory. All I would just say is in considering the subject matter of this presentation when we're looking at identity verification and the land military digital standards complaints are acting on behalf of mortgage than will also need to bear in mind the instructions that we've just referred to. And equally the fraud cases that we considered where apparently authentic documentation was produced, which turned out to be false. What this illustrates is that paper documents by themselves and not the complete answer to safeguarding against identity or other type of property fraud. So this is the reason why we're now going to look at electronic customer due diligence measures. Regulation 20 eight of the 2017 money laundering regulations covers obligations relating to customer due diligence measures. And it states that information may be regarded as obtained from a reliable source which is independent of the person whose identity is being verified where it is obtained by means of an electronic identification process including by using electronic identification means or by using a trust service. And the process is secure from fraud and misuse and capable of providing assurance that the person claiming a particular identity is in fact the person with that identity to a degree that is necessary for effectively managing and mitigating any risks of money laundering and terrorist financing. So, trust service is an electronic service normally used for the purpose of verifying and validating electronic signatures and also preserve preservation of electronic signatures. That's the definition it provides background information. I don't think you'd be expected to repeat that word for word in a letter, advice to the client or in carrying out your duties when you are checking matters related to. Ml but it does say that as long as you use a reliable source of electronic verification, then that is a method which can be used to verify identity. The next point is a reference that have been made in a blog post in May 2020 by Mark Hollow. The General Counsel and Deputy chief executive of the land registry. And he cited recent guidance from the legal sector affinity group which is linked to providing the law society's um all guidance and this provided an advisory notes initially in relation to covid but it was more about preventing money laundering and terrorist financing in legal practices. The L. S. A. G. Practice Note or Advisory Note was issued in April 2020. So what the L. S. A. G. Say is that as an alternative to face to face documentary verification, legal practices may adopt or further utilize electronic means of idea envy which is identity and verification where appropriate to the risks present in the client stroke transaction. The guidance provides examples of such methods but it says which have a method of I. D. And D. Which is used the responsibility to make sure that I. D. And V. Is undertaken correctly. Is with the relevant practitioner and practice. Now this presentation cannot recommend a particular provider that's something that the compensable would need to look at the market for. But what we are endeavoring to do on this session is to identify the issues and the matters that you should be asking of any electronic provider to satisfy yourself, that they provide a robust service. Getting back to the advisory note, this also says if you are considering whether to use a digital ID service, you must carefully consider whether it provides the assurance needed. It also makes reference to guidance on digital identity in the Financial Action Task force guidance and for that purpose, I would recommend that people look at the advisory note, the Task force guidance and in particular the recommendations that were made recommendations 22 and 27 which you can find in the executive summary. Another important consideration in choosing such a service is whether the service has attained any accreditation or certification from any of the bodies which are listed in appendix D Of the F 80 f guidance. At the moment, this particular section is looking at who you choose as a digital ID and service. The next port of call is to look at one or two aspects of land registry blog posts. And the reason why I do this very briefly is to provide some background information as to the land registries. Thinking behind the new digital identity standards. So In November 2020, Mr Harlow wrote about digital identity checking in conveyancing while techniques such as facial recognition against the passport are being used in several walks of life. They are not available to conveyances as yet. The blog also mentions that the proposed at the time the proposed digital identity standards we're not compulsory, but if they were met, there would no longer be a risk of a gun registry seeking recourse for negligence in identity checking. And they mean that if they have to pay out as a result of a fraud, then if a solicitor has met the standards, then there's no chance of the land registry pursuing that's listed in negligence. There's also another A blog post This time in March 2021 by the deputy director um of Central Legal Services, Robin Malpass and Abby Purslow Land Registrar about setting the standards for identity. So next looking at a blog post From March 2021 by Robin multiples. Deputy Director of Central Legal Services and beepers. Low land registrar, this concern setting the standards for identity. What was mentioned was about cryptographic biometric requirements, convinces might be thinking this seems really technical and high tech. We're getting back to what was said in this blog post. Land entry requirements apparently go a step further than those that rely on matching a photo printed on a document with a self taken photograph. So the land registry will require that self taken photograph or live video is also biometrically matched to the photograph which is extracted from the encrypted chip. It was also acknowledged that this requirement would prevent convinces and their clients in particular who do not own smartphones or have UK passports from verifying themselves in this way. It was also mentioned that the Land Ministry has received feedback that the requirement to obtain evidence that establishes a connection between the client and the property could not be met using current digital solutions. And the Land Ministry finally say that they are exploring the most appropriate way of providing a list of certified identity check providers, which is fair and practical. The post also makes reference to the following next steps. And this states that the Land the tree will continue to engage with identity check providers as they develop their processes to incorporate the new requirements and they will also develop their requirements by widening the scope to incorporate different legal entities such as overseas companies and local authorities. The post also made reference to the Law Society's updated Amel Guide. Just a few brief points on this in the section headed technology. The law says Ml Guide does say that a practice should clearly document their policies, controls and procedures based on a practice wide assessment where practices use electronic identification and verification. With our guide says that where practices use electronic identification and verification tools, E I. D and V tools, They should document the role of the tool, the data source that uses and in what circumstances clients stroke matters. It is appropriate to use the solution. The practice guys looks at a range of regulatory and compliance related technology available to legal practices commonly referred to as reg check and these tools help firms comply with their AML and terrorist financing duties. The laws and you also say that while these tools can be helpful, they are not a guaranteed solution to a normal stroke TF issues or risks. Nor are they guaranteed that by using them. You are in compliance with the money laundering regulations. Ultimately, we've heard this before, haven't we? Done this presentation responsibility will always ultimately sit with a legal practitioner. I'm in practice. There's also something to be said about electronic verification and bringing this in because even though this presentation is about the land registry, digital identity standards, the land registry, its own blog post, which was issued just around the time of the practice guide, do specifically reference relevant sections of the law sizes AML guide and section 7.3, there's no guide um, states now that in an increasingly digital age, it is clear that non face to face customer onboarding can no longer be viewed as always high risk. So the use of E I D E N V is increasingly being viewed as as robust as traditional verification methods such as physical documentary evidence, such as passport and driving licenses. The use says the law society of E I D and D is not without risk and it's also sensitive to human error. It basically again says that practice should be able to adequately demonstrates to its supervisor any electronic verification system or process used probably establishes your customer's identity rather than just establishing that the identity exists and as regards company registry checkers. The law society's Ml God also says that reports from such services are generally compiled using data submitted by the company itself to national corporate registries so they can therefore be used in conjunction with other sources of evidence in order to build a picture of ownership and control what just finally negative information sources used by E. D. M. V. Providers such as deceased persons lists or information or originate or information originating from established fraud. A spaces may help affirm gain comfort in the verification of the clients or beneficial owners identity by E I D E N. V. About. Uh huh. Mhm. Next very brief reference to a policy paper that was put forward by Matt Warman mp, on behalf of the digital culture media and sports department. And it refers to the government's commitment to create a clear framework of rules which show what good digital identities look like and develop proposals to remove legislative and regulated and to developing proposals to remove legislative and regulatory blockers to the use of secure digital identities and to establish safeguards for citizens. And also the UK is currently working on evolving its current U. K. Y. Digital identity and attributes trust framework. So the UK wide proposal provides some backdrop to the Practice Guide 81 that I'm now going to look at and in particular why this practice card is so important is that it sets the framework which provide guidance by the land registry as to how convinces can electronically verify a client identification first. Let's just have a look what the practice guide says. First the land registry make clear that this practice guide which is headed encouraging the use of digital technology in identity verification. This practice guide is separate to mandatory requirements as to how confirmation or evidence of identification is to be provided as part of an application for registration. Land registry. Digital identity standard is a collective term for what the Land Ministry services an enhanced level of check that is defined by reference to a set of requirements and it's those. Those requirements which formed the basis of the identity standard. The land mystery also confirming the practice guide, what was said previously in the land registry blog that if a conveyor carries out the steps described in the standard land registry will not pursue any recourse claim against the convincer resulting from the registration of a fraudulent transaction on the grounds that identity checks were inadequate. No, there are various requirements which need to be satisfied in order to meet the standard. Yeah, There are four requirements in total. three requirements must be carried out by convinces acting for a party to the transaction in all cases. So, requirements 1, 2 3 have a universal application Requirement four is an additional check. Not alternative. It's an additional check to be carried out by the convincer who represents a transfer or borrower or less or in the transaction. So let's have a look at what precisely is involved with these requirements. Starting with requirement one. Now I recommend that practitioners look at the full practice guide but I will be highlighting key elements of this practice guide. So the first one is obtaining evidence. So the purpose of this requirement is to find out if the person you are representing is who they say they are. To meet this requirement. The convincer must hold a form of evidence that can be checked by interrogating cryptographic security features within the evidence. The security features must include an electronically held photo of the identity against which biometric facial recognition checks may be made acceptable forms of evidence which meet those requirements are then set out and they include a UK biometric residence permit. So clearly if you are adopting these standards you need to familiarize yourself with these different forms of evidence. Moving on to requirement to and this is check the evidence. So this is a requirement that if you adopt the standards you will be checking the evidence that meets. The first requirement is genuine to ensure that it has not been forged and it is still current. You should do this say the land registry by using an identity check provider to verify for you that the documentary and cryptographic security features of the evidence are genuine. Requirement three match the evidence to the identity. So you must check that the person presenting the information matches the photo in the evidence provided. You must do this by using an identity check provider to make sure that the biometric information captured from a live Nous check matches biometric information in the chip within the genuine evidence that you have obtained that one. I think this gets quite technical and I do wonder how many convinces are going to voluntarily adopt the land registry standards bearing in mind what seems on first glance to be quite detailed and often technical requirements. But that's the point of speculation and we'll find out in due course but just go back to requirement three. This is matching the evidence to the identity. The land registry say that there are certain steps that the identity check provider must undertake in order to meet this requirement. So for example the Liveness test is one in which somebody uses photographs or videos that are captured live as part of the checking process of the person presenting the information. Performing tasks to confirm. The person presenting the information is real and that's known as an an enhanced Live Nous test. Yeah. To meet this requirement that identity check provider must also have a false match when the system has incorrectly identified the individual of a Maximum rate of 0.01%. So I would have a look at the full requirements. I've only just selected some points from requirement three. You would be required to connect the individual to the property by obtaining two examples from the list of evidence types provided and check in at the name and address of the individual claiming the identity match those on the evidence provided. So the list of evidence types includes. This is not an exhaustive list. Please refer to the practice guide for the full list, but this includes local authority council tax bills for the current financial year an HMRC self assessment letter. Yeah, there are separate checks for UK registered companies so obtain evidence to ensure that the transfer of borrower or less or is the same legal entity as the owner. This requirement needs to be met by the convincer representing a UK registered company. Transfer or borrower or less or to meet this requirements. There's actually a number of things which need to be undertaken and I'm only going to highlight a couple of these. But to meet this requirement as regards the UK registered company, you must obtain evidence to verify that the intended transfer or borrower or less or is the same legal entity as the relevant corporate owner of the property interests that will be transferred, charged or released. Plus you must obtain evidence that each individual who is to sign in the transaction on behalf of that legal entity is authorized to do so. This requirement will be met by completing All of five steps which the land registry have set out in requirement for. So this would include verifying information through one or more of the sources provided, such as a certificate of incorporation, obtaining evidence to check that the individuals standing on behalf of the company and the transactions are authorized to do so through one or more of the sources which the land registry referred to, such as obtaining a copy of a company resolution, appointing the authorized signatory. Further in relation to these requirements. Land Military say that where a convincer has carried out the above checks and met the requirements in relation to an individual who is signing in multiple transaction, the convinces may rely on the results of these checks for a period of up to six months. Yeah. And just to finish off the point, the campaigns are reinforces their statement. The convincer who carries out the requirements set out above to achieve the standard should remain vigilant during the remaining course of the transaction. Very detailed requirements in this practice guide out there. So if you're minded to follow these standards, you may need advice from your E I. D. And V. Provider but it's important to be aware that if you can follow these standards and prepared to do so, then you'd be protected against any negligence claim issued by the land registry in the event the land registry suffers a loss as a result of a fraudulent property transaction, this completes the part of the presentation which considers digital identity standards. I've provided some backgrounds to the new digital identity standards. I've considered that increasingly, electronic verification methods are becoming more robust and there's nothing to say that contains a or convincing firm can't use a mixture of paper documentation and electronic verification. But we will now move on to look at the next section which will be to do with mercury signatures and electronic signatures. Before doing that, I will provide some background information And in particular section one subsection 3 of the law of property Miscellaneous Provisions Act 1989. This provides that an instrument is validly executed as a deed by an individual. If and only if it is signed by him in the presence of a witness who attest the signature or at his direction and in his presence and the presence of two witnesses who each test the signature and the instrument is delivered as a deed that then takes us to the mercury tax case. And Justice Underhill in this case, express certain views a better doctor number one. The taking of a signature page from one document and it's recycling for use in another would prevent the other document from taking effect as a deed. In such case, said the judge, I believe a common understanding is that the document to be signed exists as a discrete physical entity, whether in a single version or in a series of counterparts at the moment of signing. Also in Mercury. Judge Underhill expressed the view again over the victim that The language of section one subsection 3 necessarily involves that the signature and attestation must form part of the same physical documents. In other words, the taking of a signature page from one draft deed and it's recycling for use in another would be an invalid method of execution of the other document in the bio construct case the high court applied the Mercury orbiter dictum and also held that the fixing of pre signed signature pages taken from a materially different agreement did not constitute a valid execution of a deed. So Judge Ellen bogan, in bio construct said That the language of section one subsection 3 does indeed necessarily involve that the signature and attestation must form part of the same physical documents. The Section two of the 1989 Act further provides that in relation to contracts being exchanged, that the document incorporating the terms or where contracts are exchanged, One of the documents incorporating them, but not necessarily the same. one must be signed by or on behalf of each party to the contract. Next I will refer to the law commissions report on electronic execution of documents and the Law commission noted that the Mercury Alberto raised concerns among lawyers about the use of pre signed signature pages and signings or closings, where signature pages are sent by email or facts in the report. The Law commission also observed that it's important to ensure that all parties lawyers have agreed to any proposed arrangements for a virtual signing. The Commission cited three possible options for virtual signing with various levels of formality depending on the type of document being executed Option one from our perspective, particularly from a residential conveyances perspective is the most important option. So this is where final execution copies of documents are emailed to all parties. Each party Prince and signs the signature page only and then sends a single email to which is attached the final version of the document and the pdf copy of the signed signature page. So the pdf or word, final version of the document and the pdf of the signed signature page. Both attached to the same email would constitute an original signed document and that would equate to the same physical document as referred to in Mercury, Options two and 3 are more formal. So they won't be considered in this particular presentation because we're looking today at the way that formal deeds are executed and in particular deeds that are submitted for registration at the land registry. And we will come onto the land military requirements in regard to these matters in just a moment, but it's worth bearing in mind the option one is of regarded by the Law commission as a valid method of executing. Indeed, was the other two methods might be suitable for the simple deed of guarantee or a simple contract. So on the slide in front of you, you will see a summary of what amounts to Option one for a deed and this will form the basis of what is referred to in the land registry practice guide as a mercury signature. Next electronic signatures. The law commission also included a statement of the law and the commission said that an electronic signature is capable in law of being used to execute a document including a deed provided that the person signing the document intends to authenticate the document and any formalities relating to the execution of that document are satisfied. The law commission also said that the requirement under current law that indeed must be signed in the presence of a witness requires the presence of that witness, the physical presence of that witness. This is the case even where both the person executing the deed and the witness are executing or testing the document using an electronic signature. Mhm. Next moving on to the law society practice notes execution of documents by virtual means which was published in 2010. Suffice to say that the law society taking account of the aborted victor in Mercury state. In the practice. Note that if you the convincer wish to take a prudent approach in relation to the execution of deeds, whether by an individual or on behalf of a company at a virtual signing or closing. You should use option one society's view accords with usual practice in that wet ink signed originals are normally required to be handed over to the bias convention on completion, not merely electronic images of such deeds. However, we will look very briefly at what the land registry required in respect of mercury signatures and electronic signatures. Just suffice to say the law society has also issued a separate practice no on execution of a document using an electronic signature. And I will just mention these practice notes because then if you are regulated by the sarah and a solicitor, then you can follow this guidance and even if your license campaigns that it can still be useful to consider the Law Society guidance. Moving on then to some recent amendments to the land registries Practice Guide No eight, Which was updated in November 2021 and then I will consider some relevant extracts from this practice guide as we go through this presentation. So in november, a new section was added to the practice guide to if interim guidance on how an electronically signed deed may be amended. The Land Ministry has also clarified its position with regards to counterparts and deeds of substituted security. It has also given its guidance in relation to mercury signatures, particularly in Relation to powers of attorney and forms DS one And the S three. I will thou look at some sections of this practice guide First, Section 1.1 which is headed the need for indeed when dealing with land And it is noted that Section 91 of the Land Registration Act provides a document in electronic form purporting to effect a disposition and that meets certain requirements, is to be regarded for the purpose of any enactment as indeed. And these electronic dispositions are not covered by this practice guide as they are not deeds. So it's important to clarify that point from the outset I mentioned previously. Section one of the law of property Miscellaneous Provisions at 1989. Subsection four of section one does say that to be validly executed as a deed. Each individual must sign the document using the presence of a witness and making one's mark on a document is treated as signing it furthermore, each individual must sign manually, not in fact, similarly, however, the registrar Might accept a discharge or release informed the S one or s. three though signed in facsimile a discharge or release in one of these forms must be executed as a deed or authenticated in such other manner as the registrar might approve just before we go on to the issue of mercury signatures at a station by a witness. So the law societies. Mm So this section buy the land registry on at the station by witness was inspired in part by the Law commission's report electronic execution of documents. So the section of the practice guide eight, which deals with attestation by a witness is in part inspired by the law commissions prior report on electronic execution of documents and bearing in mind statutory requirements for execution of a deed. The law commission made certain observations where both the person executing the deed and the witness are executing and testing the document using an electronic signature. The law commission expressed its view that the witnesses virtual or remote presence was not sufficient. Accordingly. Land registry continues to require that the witness be actually present when the deed is signed, the witness then adding their signature. However, there is no reason why the witness and signatory cannot be separated by a glass so a signature could be witnessed by someone looking through a car or house window. If of course they were then able to clearly see the signatory signing the reference to glass paneling or petitioning clearly is a reference to somebody who might through vulnerability or through shelf isolation or shielding might be able to have in person contact with the witness. There's also a separate section on certification where the power of attorney is executed using a mercury signature and also mercury signatures, which are used when deeds are executed in counterparts I want to get into the actual reference to mercury signatures itself. So as we mentioned previously, the Law commission in its electronic execution of documents. Report did endorse what was known as option one. And the law society also has advocated this approach. So let's delve into what the land registry says about mercury signatures and option one. It's particularly important to note that there are eight stages of the process and eight online registry say that they will accept for the purposes of registration, a transfer and certain other deeds. And please see the section of the practice note which has deeds that can be mercury signed. So Land ministry. Well, except for the purposes of registration of transfer and certain other deeds signed in Accordance with option one. So step one of this process is that final agreed copies of the transfer are emailed to each party by their campaigns. So all convinces need to be involved in the process and we need to be at a stage where we're beyond negotiations on the terms of the transfer, the terms have been settled and agreed. Step two, Each party prints the signature page only. Step three. Each party signs the signature page in the physical presence of a witness. Step four, the witness signs the signature page. You'll notice that so far we're just signing the signature page. Whereas if you're doing this using the traditional method of execution, the entire document would be signed Unwin nist as a single document for example, that might be stitched together or stapled together but going back to the process of mercury signatures. So once the signed page has been completed, step five is each party then sends a single email to their condenser 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 six is when the conveyancing transaction is completed, Step seven, the campaigns that applies to register the disposition and includes with the application, the final agreed copy of the transfer and the signs, signature page or pages in the form of a single document. Step eight. The application is processed by land registry following standard operating procedure. So clearly Before we even go to step one we need to ensure that all the conveyances are agreeing from the outset, the option one can be used. Also note that witnesses will be required in exactly the same way as it is for any other document to constitute. Indeed, and the separate guidance in the practice guide on attestation by a witness. The practice guide also refers to the law commission's view that the pdf or word, final version of the document and the pdf of the signed signature page, both attached to the same email will constitute an original signed document and will equate to the same physical document referred to in mercury. Yeah blood registry further proceed By saying that the combining of the transfer and signature pages in step seven may be done either by there being electronically combined or print it out and then physically combined the conveyance that will certify that the resulting transfer is a true copy of the original in the usual way the application for registration can then be done through the electronic document registration service. If there has been an electronic combination, then the combined transfer and signature pages can be directly uploaded as a single document. If there has been a physical combination, the combined transfer and signature pages can be scanned as a single document. The alternative is the application can be made in paper form. A copy of the single combined document constituting the executed transfer will need to be lodged. If electronically combined, the resulting document can be printed out before I consider the practice guide on electronic signatures, I just mention the section that I previously alluded to albeit very briefly. And this is the lung registries guidance on deeds that can be mercury signed. So land registry will for the time being except for the purposes of registration, the following deeds that have been signed in accordance with option one. So these includes transfer deeds, a discharge or release informed DS. One equivalent needs in respect of unregistered land. A power of attorney with the exception of a lasting power of attorney because with LPS as a separate statutory method which needs to be used. Although at the time of this recording, there is a consultation on digitizing LPS currently underway. Getting back to the land registries practice guide the unless you say they will also accept an ascent of registered or unregistered land signed in accordance with option one without step four. If the ascent is not made by deed. In all cases though the parties to the deed or ascent must be represented by a convincer just very briefly, it's noteworthy that the land registry in setting out the deeds that they would accept for the purposes of registration which had been signed. In accordance with option one say they will accept those deeds for the time being. So is there a suggestion at some stage that the land registry might abandon the use of mercury signatures? We'll wait and see. Let's move on then to section 13 Of Practice Guide eight which deals with electronic signatures. And here unlike with mercury signatures, we're not talking about wet ink signatures but signatures using electronically generated means Just to mention that section 13 was added by the land registry to set out the registry's new practice in respect of deeds that are executed using electronic signatures. And there's also included within this new guidance on the way that the document should be signed and dated using electronic signatures. And so it's that process which we now look at. So it is the signing and dating process when electronic signatures are used on deeds that we will now consider Well before doing so. I just want to just briefly consider some of the land registry requirements. The First Port of Call is Section 13.3 headed our requirements. So first all the parties agree to the use of electronic signatures and a platform in relation to the deep secondly, all the parties have conveyances acting for them except that only the lender in the case of a mortgage discharge or release the personal representatives in the case of an ascent and the donor in the case of a power of attorney need to have conveyances acting for them if any party is unrepresented other than than the situations that we've just outlined including a party was not signing themselves. Electronic signatures cannot be used by any of the parties involved. So if you are minded to use electronic signatures that it's important that that particular requirements as to representation and exceptions when a party does not need to be represented by a convincer that you heed. The requirements are stated in the practice guide. Furthermore, the perhaps guide also says where a deed is to be signed electronically by a party's conveyance sir. And the deed is one other than the power of attorney itself. A convincer must be acting in respect of the execution but it does not matter for the purposes of these requirements, whether the convention was instructed by the party or by the attorney. The other point here is that a conveyance will need to be responsible for setting up and controlling the signing process through the platform. So let's have a look at the signing and dating process. So this process Now involves six discrete steps. The first one is that the convincer controlling the signing process will upload a final agreed copy of the deed including any plans to the platform. That same convincer will populate the platform with required details such as name, email address and mobile phone number of the signatories and the witnesses. Yeah the same convincer will also highlight the fields that be completing within the deed indicate by whom they are to be completed and set out the order. So the witnesses after the signatory, who is signing the document. Step two involves the platform emails the signature is to let them know that the deed is ready to sign Steps three and 4 next to access the deed on the platform via the email received the signatories will be required to input an OTP sent to them by text message by the platform. The OTP Must contain a minimum of six numbers the signatories then enter the OTP and sign the deed in the physical presence of the witness with the date and time being automatically recorded within the platforms audit trail. Step five. Once the signatory has signed the deed, the witness will receive an email from the platform inviting them to sign and add their details in the spaces provided in the attestation clause, the witness then inputs and OTP which will be sent to them by text message by the platform signs and ads their address in the space provided with the date and time being automatically recorded again, Step six. Once the signing process has been concluded, the campaigns of controlling the signing process or another, campaigns are acting for one of the parties dates the deed within the platform with the data took effect, there will be a gap between this step and the previous one. If as is often the case, the deed is signed by all the signatories and witnesses sometime in advance of completion. The practice guide then deals with the application for registration process so the convincer who lodges the application does so by electronic means and includes with the application a pdf of the completed deed. If the applications for first registration, a printout of the pdf certified to be a true copy of the original deed can be lodged. The convincer lodging the application would need to include a signature not necessarily signed by them in the required format certifying that to the best of the convinces knowledge and belief. The Requirements in the Practice Guide eight for execution of deeds using electronic signatures have been satisfied and in appendix three you can find an example of an acceptable certificate. The certificates will be read by the land registry is referring to the requirements as they were on the relevant date. The certificate can be given by any parties campaigners who have satisfied themselves that the deed has been duly executed through most cases involving transfers the conveyance of control and the signing process will be the seller's convincer and the conveyance of lodging the application will be the bias convincer. The practice guide further says that a conveyance is not precluded from giving the certificate because they have signed the deed themselves on behalf of a party acting under a power of attorney. The land registry though do say they will rely on the contained certificate lodge with the application. Any audit report or certificate of completion issued by the platform must not be lodged with the application but should be retained. It may contain personal data and would be open to public inspection. That's a very important point to be aware. So I'll just repeat that one that any audit report or certificate of completion issued by the platform must not be lodged with the application but also just mention that a new section To the practice guide was added at 3.6 In November 2021. So the land registry though At section 3.6, when dealing with amendments to electronically signed Deeds, has stated that it is providing interim guidance on how this might be done when the deed has been signed with electronic signatures. It is pending the outcome of a more thorough review by eight am land registry. So the land registry are considering different options, such as one option being for the executed deed to be printed out and amendments made to this print out and then the print out should have an endorsement along the lines of that which Is set out in section 13.6. There's also consideration as to whether or not all parties need to consent to the amendment, particularly if the amendment is not material. So long registry, cite a case, the cross these shipping case in which he was held at an amendment to indeed would be material. If it is potentially prejudicial to a party's legal rights or obligations under the instrument or deed, it might be that in many if not most cases any amendments to the deed will be executed in the usual way. So I would recommend that you keep an eye out on the practice guide because the information in the practice guide can change if you're not sure as to whether or not to amend electronic deed without the electronic signatures of all parties concerned. Another option, whether the amendment is material or immaterial is for the parties to execute a DD rectification or variation. I would just add. Of course though, in the case of the least. If you're changing the extent of the demise, all the term of years then any need of variation would take effect as a surrender and re grant and the land registry would almost certainly require the change to the lease in of that nature to be done in the form of a new lease. So this brings to an end this presentation on land registry, digital identity standards and electronic signatures. It's been brought to you by myself Stephen Desmond on behalf of data law and it might be that you will wish to continue with the traditional methods of executing deeds and also to consider whether or not you gradually over time move to the mercury signature method or adopt electronic signatures. Will it be something that the profession will adopt? Time will tell. But if you are choosing to adopt either a mercury signature or an electronic signature, I do hope that some of the information that's been provided in this short webinar will be helpful to you. Thank you for listening. Yeah.