A scan is not enough (it is now).
A quiet revolution has been making its way through the corridors of Solicitors’ and Land Registry offices.
The printing press made its appearance in the Western World in around 1440.
The King James Bible was published over 400 years ago.
2020 will mark the beginning of the end for lawyers needing hard copy executed documents from their clients.
One of the well known effects of the COVID-19 pandemic has been the closure of offices and the working from home of nearly all, previously office based, professionals.
Necessity has been the mother of invention and Real Estate lawyers, that class of people whose natural world is seen as ink and wax seals on vellum, have been dragged kicking and screaming into the internet age.
Not only that but the Land Registry have too.
What was the problem with the old system?
The Land Registry has accepted electronic applications to its portal for some time now as well as postal applications.
A solicitor would upload the relevant application form together with scans of the relevant documents.
In uploading the documents it was a requirement for the solicitor to confirm that the documents being uploaded were certified copies of the originals.
In order to certify a copy as a ‘certified copy’ of the original the solicitor had, practically speaking, to hold the original document in their hands.
To take an example, if talking about a transfer of registered land (form TR1)
- a solicitor would post or email the form to the client;
- the client would print off the form, sign it in the prescribed way (and if necessary a witness would too, and insert their details);
- then the client would post or send by courier the form TR1 to their solicitor.
- on completion of the sale the solicitor would post the form TR1 to the buyer’s solicitor
- the buyer’s solicitor would scan the form TR1 and include that scan as a certified copy with the application to the Land Registry.
That was all very well when life was normal but now that we are distributed as chaff to the wind, our home offices do not have commercial grade laser printers and scanners, the post service is as reliable as the old post coach service (which for example took 16 hours form Bristol to London in 1784) .
On the positive side, we have an alternative, electronic mail.
In response to the Pandemic, the Land Registry have been prevailed upon to put lessons learned from a recent legal case into practice, and to begin changing their requirements.
What has changed and why?
Those familiar with Roman mythology will recall that Mercury was the messenger of the gods.
By a strange irony, the Land Registry practice has been influenced to speed up the delivery of our and its services, by a case involving Mercury, this time a tax advice company.
R (Mercury Tax Group Ltd) v HMRC  EWHC 2721 (Admin) (Mercury Case) or “the Mercury Case” as it became known
The Law Commission report “Electronic execution of documents” (Law Com No 386), published in September 2019 which followed the Mercury Case was of the 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’”
In the usual lightening speed exhibited by Government entities, some eight months after the Law Commission’s report, and 5 weeks after the pandemic began in England, the Land Registry has added an additional paragraph, 12 entitled Mercury Signatures to its Practice Guide dealing with execution of deeds.
Guidance Practice guide 8: execution of deeds Land Registry, Updated 4 May 2020
The long and the short of it, is that in certain circumstances, the Land Registry will allow practitioners to treat documents scanned to them by their clients as ‘original documents’ without the need for the client to use the services of the Royal Mail or a courier.
It is important to note that this Revolution has its limits.
In our example above, the client would still need to print the form TR1, sign it in wet ink, before a witness who would also sign it in wet ink, all before scanning it back to their solicitor.
Also, both solicitors in the transaction would need to agree that hard copy documents need not be delivered immediately if at all.
But do not lose hope, not all revolutions are as glorious as that of 1688 and some take time, it took over 200 years after all for people in London to actually like St Paul’s cathedral and view it as an icon hopefully it will take less time for electronic documents to become “the new normal”.
The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
The guidance is a complex and no guide can ever set out all the factors relating to a particular case. This guide is not therefore a substitute for detailed advice on your case. If you would like further explanation of any points in this Guide, please contact us.
For more information please speak to your Real Estate contact of choice or Philip Turner, real estate investment partner.