185: COVID-19 – Can a signature on a deed be witnessed remotely?

In the current daily-evolving climate with the majority of us working remotely and social interaction being achieved virtually, we are being forced to think about the practicalities of being able to do things that previously were given no thought at all. In particular, whether it is possible to remotely witness a signature on a deed.

The usual position is that where the deed is to be executed by an individual or a company, either the individual or executing director must sign the deed in the presence of the witness who must also attest the signature.

Given the current situation and not knowing how long the current government guidelines are to remain in place regarding social distancing, it would be helpful if measures such as remotely witnessing a signature could be adopted.

This issue was recently considered in the First-tier Tribunal (Property Chamber) (FTT) case of Man Ching Yuen v Landy Chet Kin Wong and more specifically, what counts as ‘presence’ as required under section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989).

Background

The case involved the transfer of jointly owned property and it was alleged that the transfer had been forged. The FTT had to decide whether one (A) of the two joint owners had signed a transfer which transferred the ownership of the property into the name of a single proprietor.

‘A’ purported that she had signed the transfer in Hong Kong and her solicitor (based in London) had observed her signature by Skype. Several days later, the solicitor attested ‘A’s’ signature on the document itself that the solicitor had observed the execution of the transfer.

Legal Issues to consider

The FTT were asked to consider whether a person viewing the signing of the deed by video-technology was sufficient to constitute the execution of the deed being done ‘in the presence’ of the executing party Therefore, the key legal issues for consideration were two-fold:

1. had the transfer been witnessed? and
2. had the transfer been attested?

within the meaning of s1(3) LP(MP)A 1989.

What did the FTT decide?

In relation to the first strand as to whether the transfer had been witnessed, the FTT found that given the uncertainty in the current law in this area, the physical presence of the witness was required.

In relation to the second strand of attestation, it was found that attestation need not be contemporaneous with the execution of a deed following the case of Wood v Commercial First Business Ltd (in liquidation) [2019] EWHC 2205 (Ch). However, the FTT made no comment about the time-gap between the execution and the attestation on the document itself which could lead to potential further issues in the future.

What does this mean for now?

Whilst the world is technologically advancing, even in this digital day and age, actual physical presence is the safest way to proceed when it comes to witnessing deeds. This should be the position adopted, despite there being other more informal ways that witnessing could be carried out.

Having a witness physically present provides more certainty and safety for the signatory when it comes to relying on the deed at a later stage in the future, which corresponds to the higher status that deeds have when compared with other written legal instruments.