In this electronic age of the smart phone, blackberry, tablet and countless other electronic devices, 11 May 2014 saw Scottish conveyancing step into the twenty first century when electronic conveyancing deeds assumed the same validity as traditionally signed deeds.
The Land Registration (Scotland) Act 2012 (Commencement No. 2 and Transitional Provisions) Order 2014 brought Part 10 and Schedule 3 of the Land Registration etc. (Scotland) Act 2012 into force in relation to electronic documents, electronic conveyancing and electronic registration of documents relating to land.
With effect from 11 May 2014, the Order made a key change to the Requirements of Writing (Scotland) Act 1995 to enable formal writing for contracts, obligations and conveyances to be in electronic format. This marks a big departure from the legislation which previously required the original signed deed in order to complete a transaction and to register deeds in the Land Register of Scotland.
The Electronic Documents (Scotland) Regulations 2014 also came into force on 11 May 2014. These Regulations specify the requirements for electronic documents and electronic signatures to be valid and self-proving, namely:-
(i) the relevant electronic document must have an advanced electronic signature;
(ii) the electronic signature applied to the electronic document must be certified by a certification authority;
(iii) annexations must be referred to in the document, identified on its face as being the annexation referred to in the document and annexed to the document before the electronic signature is incorporated with the document and the annexation.
The practical implications of the shift to electronic conveyancing will initially be minimal for solicitors until a secure electronic document exchange facility is created. It has been suggested that the shift to an electronic system may require a move to having a single national missive and a standard disposition linked to the SDLT system.
Advanced electronic signatures will replace the traditional “ink” signature and will have a unique link to enable the signatory to be identified. The advanced electronic signatures are currently awaited from the Law Society of Scotland.
It should be noted that not all of Part 10 of the 2012 Act has been brought into force by the Regulations. Wills, testamentary trust dispositions and settlements and codicils are not yet permitted to be in electronic form. However, policies are being developed between the Scottish Government, Scottish Courts and Registers of Scotland to enable the Scottish Courts and Registers of Scotland to accept wills and either testamentary documents in electronic form.
2014 opens a new chapter for Scottish conveyancing and the full extent of the changes and what these will entail in practice will become apparent over the coming months.