Legal challenges in challenging times

Few people would have thought a few months ago that working from home would become the norm for many of us. After an initial period when it was all new, with lots of momentum and adrenaline to tackle the many immediate challenges, we now seem to have settled into more steady daily routines at home.

Working from home presents many and varied difficulties for people: finding space to work comfortably, home schooling the children, restless pets and so on. And there are risks that have to be managed such as fraud and cyber-attacks on home broadband networks.

Case management systems, email and the internet have been part of our lives for a long time now. However, there is still a lot of paper involved in a typical conveyancing transaction. Electronic signatures are quite widely used in this country and the law has evolved over the last 15 years or so, thanks mainly to the willingness of judges to provide much-needed clarification of legal requirements when signing electronically. However, some legal documents, including transfers and other dispositions of registered and unregistered land, have to be signed by individuals on paper in the presence of a witness. One exception is our digital mortgage but this is only currently available for remortgages.

Traditional legal formalities that have largely stood the test of time have presented difficult practical problems for legal professionals and customers alike during the coronavirus (COVID-19) crisis. How do you legally sign a document when you are maintaining social distancing or self-isolating? How do you make a land registration application when you are working from home and don’t have a printer? I don’t have all the answers unfortunately but we have been listening very carefully to what our customers have been telling us. We have been working very hard to try to make things easier in these unprecedented times.

Immediate priorities

Following the Prime Minister’s address to the nation on coronavirus on 23 March, HM Land Registry’s immediate priority was to ensure we maintained essential services so our customers were still able to complete conveyancing transactions and make land registration applications wherever possible. We knew our customers needed to be able to get official copies and make the usual pre-completion searches. Ensuring we could still open our post and that the portal and Business Gateway continued to work normally were our highest priority. We recognised it was likely to be several weeks before we could start processing applications to change the register except in the most urgent cases. However, by ensuring that applications were entered on the day list in the usual way, applicants were still protected.

Changes to HM Land Registry practice

As well as maintaining essential services, we made a number of changes to our practice and procedures in late March and early April which we hope are helping our customers. Some of the changes are listed here.

• Stopped rejecting applications where evidence or confirmation of identity is completely missing until further notice.
• Suspended cancellation dates in cases where we request further information, giving customers more time to get the information and respond.
• Extended notice periods where the law and the circumstances allow.
• Made some temporary changes to make it easier for customers to have their identity verified – this includes extending the professions of people who can verify identity and allowing verification to be carried out by video call where certain conditions are met.
• Changed our practice to allow most land charges applications to be made by email, attaching PDF copies of application forms and any supporting evidence.
• Relaxed the arrangements for making first registration applications where there may be some difficulties sending or certifying all deeds and documents required in support of an application.

The witnessing problem

One of the most frequently asked questions by our customers has been whether we will accept a transfer or other disposition of registered and unregistered land signed by an individual and witnessed remotely by video. The answer unfortunately is no because the law does not allow it. Each individual must sign “in the presence of a witness who attests the signature” (section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989). However, we have been looking at other ways of getting around the problem.

The Mercury signing process

A customer suggested we should accept transfers and other dispositions of registered and unregistered land that have been Mercury signed. She explained this would be a great help to legal professionals in getting deeds completed remotely. We felt this was a very helpful suggestion and we have changed our practice and updated the relevant practice guide. The practice guide explains when the Mercury signing process can be used and the procedure that should be followed.

Looking ahead – electronic signatures

We have been exploring electronic signature options for some time but our work has gathered real pace in the last couple of months. We know many of our customers would like to be able to use electronic signatures to sign transfers and other dispositions of registered and unregistered land. The legal framework has in fact been in place since 2003 but advances in technology in recent years are making it much easier to sign a document electronically. Two options we are actively considering are:

• signing deeds electronically using a UK-based electronic signature platform – witnessing is still required, and
• qualified electronic signatures – witnessing is not required but this may take longer to introduce

In the coming weeks we will be seeking our customers’ views as this work progresses. But our aim is to provide digital services as long as this can be done safely and securely. We believe this is what our customers want.