Electronic signatures are becoming increasingly common in property transactions, but when it comes to deeds, the rules are more complex. In this article, we explain the procedures for signing deeds electronically, including Mercury Signing and conveyancer-certified electronic signatures. Whether you’re a conveyancer, lender, or party to a transaction, understanding these requirements is essential to ensure your documents are valid and enforceable.

When do you need a deed?

Generally, an interest in land cannot be conveyed or created without a deed.

To be a deed, a document must:

Be in writing
Make clear on its face that it is intended to be a deed by the person making it or the parties to it.
Be validly executed as a deed by the person making it or one or more of the parties to it (section 1 of the Law of Property (Miscellaneous Provisions) Act 1989)

A document signed electronically can be executed validly as a deed, provided certain procedures are followed. The two most common forms of electronic signature are Mercury signing and a conveyancer-certified electronic signature. Ensuring the formalities of each method are followed is essential. If the steps of either are not followed correctly, you risk your deed being deemed invalid and, therefore, unenforceable.

What can be signed electronically?

Common real estate documents that can be signed electronically include:

Legal charges
Discharge of an existing charge
Deed of postponement/variation of a registered charge
Deed of surrender of a registered/noted lease
Registrable leases
Transfers

Whilst the Land Registry will accept an electronically signed document from the above list, a lender may not. Always check what your lender’s view on electronic signing is at the start of a transaction to avoid delays later down the line.

What are Mercury Signatures?

“Mercury signing” was explored in the case of R (Mercury Tax Group Limited) v HMRC[CL1] [2008] EWHC 2721. It is a method of electronic signing that replaces traditional wet-ink signing, but in a digital format.

Requirements for Mercury Signing

For parties to make use of Mercury Signing, they must all be represented by a conveyancer. There are exceptions for lenders, personal representative (where there is an assent), or donors for the purpose of a power of attorney. A formal process must then be followed.

Steps to be followed

For the execution of a Deed, the following steps must be followed. Briefly, these are:

The engrossment deed must be emailed to each signing party by their conveyancer.
Each party prints the signature page only and signs in the physical presence of a witness who will also sign the signature page.
For the execution of deeds or real estate contracts, each party will then send a single email to their conveyancer attaching the engrossment deed and a suitable copy of the signed signature page.
The conveyancer applying for registration will append the signature page to the engrossment document (either electronically or physically), and the transaction is completed.

When can Conveyancer-Certified Electronic Signatures be used?

Section 91 of the Land Registration Act 2002 provides that a document in electronic form can, for the purpose of registration, be regarded as a deed if certain conditions are met.

HM Land Registry will accept most electronically signed documents provided that the relevant formalities are followed. The signing will require the use of an operating system or platform that manages the electronic signing process, including the creation of the electronic signature. DocuSign is often used.

Requirements for Conveyancer-Certified Electronic Signatures

There are strict steps which your conveyancer will arrange and follow. As a brief overview, this includes:

All parties to the disposition or other dealing, including any parties who are not signing, must be represented by a conveyancer. The same exceptions noted before for Mercury Signing apply.
Your conveyancer must be responsible for setting up and controlling the signing process through the platform. This includes uploading the final agreed document and populating the appropriate details of the parties. They will also arrange for parties to be given access.
An access code or one-time password will be provided to each signing party, which must be used to access the document as a second way of authenticating the person’s signature.
Your conveyancer will be responsible for dating the electronic document within the platform. They are also obligated to provide a conveyancer certificate certifying that the formalities of HM Land Registry practice guide 82 have been followed. This is commonly known as a PG82 conveyancer certificate.

Note: a witness to an electronic signature must still be physically present when the relevant party applies their electronic signature.

Additional Considerations

This note is limited to the procedures required for electronic signatures. There are a number of other legal and practical matters that parties may need to consider, including:

Whether there is sufficient certainty that the person purporting to sign using an electronic signature is in fact that person (or acting under the authority of)
How the document is to be distributed, signed, and held electronically to ensure it is sufficiently secure.
Compliance with HM Land Registry guidelines.
Lenders may insist that documents are signed in wet ink. You should always check with the parties in your transaction as to how they wish to proceed.

Please refer to Land Registry Practice Guide 82 for further guidance and full details of the steps required.