How to ensure e-signatures are legal
Recent case law suggests that the courts will uphold the use of electronic signatures to satisfy the Law of Property (Miscellaneous Provisions) Act 1989 requirements for a document to be ‘in writing’ and ‘signed’. The courts will consider whether the method of signature used fulfils the function of a signature.
Electronic signatures come in many forms and it is important that a reputable form is used. To ensure its validity, the e-signature, should be:
- unique to the signatory;
- capable of identifying the signatory;
- created under the signatory’s sole control;
- capable of being linked to the data or document so that changes are detectable.
Parties should also:
- include a provision stating that an electronic signature is deemed to be a signature;
- make clear to the other party that the contract in your possession does not have a traditional ‘wet ink’ signature;
- obtain prior approval to its use from all relevant parties.
It is unclear whether a deed can be validly executed using an e-signature and best to assume it will not be valid.
The Land Registry does not accept e-signed documents for registration so to avoid registration issues, have a hard copy of the file ‘wet ink’ signed by both parties.
This article was published in Estates Gazette in November 2013.
