While electronic signature of documents has become commonplace in the Real Estate sector in England and Wales, progress in Scotland has been slower as the main Registers (the Land Register, Sasine Register and Books of Council and Session) still require deeds and documents submitted for registration there to be wet ink signed.
Scots law has a legislative framework in place for electronic signature with the Requirements of Writing (Scotland) Act 1995 (“ROWSA”) having been updated in 2012 to explicitly allow most documents to take electronic form. ROWSA does however require certain types of electronic signature to be used for more “significant” documents, and in those cases an Advanced Electronic Signature (“AES”) is needed for validity or a Qualified Electronic Signature (“QES”) for it to be self-proving (probative). Many people will be familiar with “simple” electronic signature (the main type used in England and Wales) but will be less familiar with AESs and QESs. An AES is a more secure form of signature as it is uniquely linked to the signatory, capable of identifying the signatory and is created using means that the signatory can maintain under their sole control. A QES is the highest standard of electronic signature. This is the most secure type of signature and involves the signatory’s identity being verified by a qualified trust service provider before the signatory is issued with a QES. Under Scots law, a QES is the only type of electronic signature that is self-proving (probative).
Missives (contracts) for most land transactions require an AES for validity and a QES to be self-proving. Digital missives are becoming increasingly more common as solicitors in Scotland normally conclude these as agents on behalf of their clients and have access to QESs, in the form of their Law Society Smartcards or through commercial providers such as DocuSign and Adobe Sign.
The good news is that change is on the horizon for the Real Estate sector, with the Books of Council and Session due to open to digitally signed deeds on 1 October 2022. This will allow deeds such as short leases to be signed using a QES and then be registered there.
Registers of Scotland have also been running a proof of concept for the digital signing of Land Register deeds (such as Dispositions) and CMS have been supporting them in this process, along with our client Hunting plc and using the DocuSign e-signing platform. This week saw the submission of the first QES signed Disposition and, while this is still a very early step in the journey towards the opening of the Register to such digitally signed deeds, it is a very welcome and positive step in the right direction.
If you are interested in learning more about QESs and how CMS can help you prepare to embrace this new technology, please get in touch with you usual CMS Scotland contact or one of the contacts below.