Meeting the HMLR requirements for deeds signed electronically

• All the parties agree to the use of electronic signatures and an electronic signature platform (platform) in relation to the deed.
• All the parties have conveyancers acting for them (subject to narrow exceptions).
• A conveyancer is responsible for setting up and controlling the signing process through the platform.

The signing and dating process set out in section 13 of Practice Guide 8 is as follows:

The conveyancer who lodges the application with HMLR does so by electronic means – usually via the HMLR portal - and includes with the application a PDF of the completed deed. However, where the application is for first registration, a print-out of the PDF, certified to be a true copy of the completed deed, can be lodged.

The conveyancer lodging the application (including an application for first registration) provides the following certificate: “I certify that, to the best of my knowledge and belief, the requirements set out in practice guide 8 for the execution of deeds using electronic signatures have been satisfied.”

Any conveyancer with an Acrobat Sign account can initiate this process for all parties. There is no need for the signatory and witness to have their own Acrobat Sign account.

The Acrobat Sign administrator for the conveyancer can change settings in Acrobat Sign to enable workflows which satisfy steps 1-6 in the Overview of the HMLR workflow section above. These settings are presented below in the section on Configuring Your Acrobat Sign Account.

The section on Preparing the Deed for Signature provides important guidance on:

• preparing the deed for signature before initiating the signing process;
• including the prescribed execution and attestation clauses in the deed; and
• protecting confidentiality by using a unique feature in Acrobat Sign called “Limited Document Visibility”

Acrobat Sign allows an account administrator to change settings to ensure that the workflow aligns with the requirements of section 13.3 of Practice Guide 8. Before sending deeds for electronic execution using Acrobat Sign, we recommend you make the following changes:

• Require explicit consent to signing using Acrobat Sign. Account administrators can configure Terms of Use & Consumer Disclosure settings to require explicit consent (via a check box) to the use of Acrobat Sign. This can be required either before viewing the deed or before signing the deed.
  • Navigate to the Group section of the admin menu
  • Click the group to be configured (exposing the available actions at the top of the list)
  • Click Group Settings
    

• Select the Signature Preferences tab
• Check the option to Override account settings for this page
  
•  Scroll down to the Terms of Use section and click on the link for Signers
  
• Select an option other than the default to enable explicit consent
• Save the changes

• Turn on Limited Document Visibility: Limited Document Visibility (LDV) allows the conveyancer to protect confidentiality by ensuring that the witness may only view the execution or signature page (not the entire deed) and may only receive a copy of the audit trail relating to the signature process; the witness does not obtain a copy of the signed deed itself. Account administrators can enable the LDV settings as follows:
  • Navigate to the Group section of the admin menu
  • Click the group to be configured (exposing the available actions at the top of the list)
  • Click the Group Settings action
    
  • Click the Group Settings option in the group's menu
  • Check the option to Override account settings for this page
    
  • Scroll down to the Limited Document Visibility section
    
  • Enable:
    • Signers will only see files containing signature, initials or data entry fields assigned to them
    • Signers and CCs in my account will see all files
  • Save the changes
    

• Create a message template (optional):  You can create a message template to help conveyancers save time when sending a document for signature. The template can automatically populate the email body with a standard message and subject line.
  • Navigate to the Group section of the admin menu
  • Click the group to be configured (exposing the available actions at the top of the list)
  • Click the Group Settings action
    
  • Click the Message Templates option in the group's menu
  • Click on + to create a new message and the follow instructions to create a new template

The final version of the deed should be uploaded to Acrobat Sign by the conveyancer so that the parties can sign in accordance with the prescribed steps set out in section 13 of Practice Guide 8.

Section 13 envisages that the signatory signs in the physical presence of a witness who attests the signature. The time and date of each signature is recorded in the Acrobat Sign digital audit trail. When the signing process is concluded, the conveyancer is required to date the deed within the Acrobat Sign platform with the date it takes effect. The dating of the deed will constitute delivery of the document as a deed by the parties.

There are three important considerations for a conveyancer controlling the signing process:

• To take advantage of the LDV settings, the final version of the deed and its execution page should be prepared as separate files and uploaded together to Acrobat Sign. Acrobat Sign automatically combines multiple files into a single document during the signing process. The LDV settings enable conveyancers to present different parts of the document to the signatories and witnesses during the signing process.
• Section 2.2 of Practice Guide 8 prescribes the form of execution and attestation clauses for the manual execution of deeds by individuals. These clauses should also be adopted when the deed is executed electronically. To provide assurance that the witness was physically present when the signatory signed, the conveyancer should include directly below the witness details in the deed itself the following statement from the witness: “I was physically present as a witness when the signatory applied their signature to this deed”.
• Section 13 of Practice Guide 8 also obliges the conveyancer to certify that the HLMR requirements have been duly met. The conveyancer’s certificate is lodged together with the application to HMLR for registration of the deed. In section 16 of Practice Guide 8, HMLR has indicated that the following certificate would be ‘appropriate’:

“I certify that, to the best of my knowledge and belief, the requirements set out in practice guide 8 for the execution of deeds using electronic signatures have been satisfied.”

By following the signing process outlined below - and in reliance on the Acrobat Sign digital audit trail -a conveyancer can feel confident in providing their certificate to HMLR.

Orchestrating the signing process

The signing ceremony can take place with all parties in the same office, or with the signatory and witness at a remote location. The section below on the Audit Report details how Acrobat Sign may validate that the witness was physically present when the signatory signed the deed.

When the signatory and witness are in a remote location (i.e. not co-located with the conveyancer), Acrobat Sign is configured to provide the conveyancer with the assurances they need that the signing process adheres to the requirements of Practice Guide 8.

Open the email
The first signatory receives an email in their inbox.

• The signatory clicks on the Review and Sign button

• If the conveyancer has selected phone authentication during the deed preparation phase, clicking on the Review and Sign button initiates the one-time passcode authentication process
• The signatory clicks Send Code

Acrobat Sign sends a six-digit OTP to the phone number nominated by the conveyancer during the deed preparation process.

• The signatory enters the code and clicks OK

• The signatory completes any assigned fields in the document, and then affixes their electronic signature using one of the options provided by Acrobat Sign:
  
  • Typing their name
    
  • Drawing on the touch screen of the device they are holding
  • Uploading a signature image
    
• After signing, they click the Apply button

• If an explicit consent policy has been applied, the signatory is prompted to accept the Terms of Use which can be customised by the conveyancer.

• The signatory is redirected to a new webpage notifying them that their signature has been applied and indicating who will sign next.

• A signatory, who will designate the witness, then receives a second email inviting them to delegate a signature field to the witness
  
  • They click on the Review and delegate for signature button to commence the delegation process

• The delegating signatory then provides:
  • An email for the witness
    
  • A phone number for the witness
  • An optional message for the witness
• When the delegation is configured, click Delegate
  

• The witness receives an email from Acrobat Sign at the email address supplied by the signatory, which invites them to Review and Sign the deed.

• The witness is prompted to identify themselves using a six digit OTP sent to the number entered by the signatory

• The deed opens directly at the execution page, and the rest of the deed is not visible to the witness.

• Finally, the deed is then routed to the conveyancer who adds the date in the field allocated to them with the date it takes effect.
• When all parties have completed the signing process, they receive an email inviting them to download a copy of the final e-signed deed and the associated digital audit trail.
• By contrast, the witness is only entitled to download the execution page and the audit trail associated with the execution page.

The Audit Report is a complete record of every event relating to the signing process. It holds important evidence for conveyancers regarding, inter alia, the identity of signatories and witnesses, the time of execution, email and IP addresses.

It shows:

• Who the document (deed) was emailed to, and the time at which it was emailed.
• Who viewed the document and when.
• The fact that “Restricted Visibility” mode was enabled.
• The fact that the signatory (and any witnesses) accessed the document following mobile phone authentication (Note that the phone number is partially obscured for GDPR compliance)
• The fact that the signatory consented to the terms of use.
• The time and IP address used when the document was signed.
• The email address of the witness, and the use of mobile phone authentication.
• The time at which the final document (deed) was emailed to the respective parties.

Conveyancers should bear in mind that an IP address cannot always be taken as conclusive evidence that individuals were co-located at the moment of signature if, for example, the signatory is using a mobile connection and the witness is using a Wi-Fi network.

It may therefore be preferable to orchestrate the signing process on a single device, or to require that all devices be connected to the same Wi-Fi network and that no VPN functionality is used.