How to ensure e-signatures are legal

Posted: 26/11/2013

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.

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