Signing a Guarantors form (as deed) : Problem Witnessing

[Hooper]

DocuSign clearly have a different view, but I don't think that their assertion has been proven (and the fact that their supporting document is described as a white paper doesn't exactly fill me with confidence.)

I think their position is pretty well accepted.

https://www.lawcom.gov.uk/project/el...-of-documents/
(Report to government which has been accepted by government)

Legal validity of electronic signatures

The following statement of the law sets out our high-level conclusions as to the law regarding the validity of electronic signatures. It applies both where there is a statutory requirement for a signature and where there is not. Because of the way the law has developed, our summary of the law also has broad application and is not restricted to commercial and consumer documents.

Our report sets out a more detailed analysis of the law relating to electronic signatures. Statement of the law: execution with an electronic signature

1. An electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.
2. Such formalities may be required under a statute or statutory instrument, or may be laid down in a contract or other private law instrument under which a document is to be executed. The following are examples of formalities that might be required: (i) that the signature be witnessed; or (ii) that the signature be in a specified form (such as being handwritten).
3. An electronic signature is admissible in evidence in legal proceedings. It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.
4. Save where the contrary is provided for in relevant legislation or contractual arrangements, or where case law specific to the document in question leads to a contrary conclusion, the common law adopts a pragmatic approach and does not prescribe any particular form or type of signature. In determining whether the method of signature adopted demonstrates an authenticating intention the courts adopt an objective approach considering all of the surrounding circumstances.
5. The Courts have, for example, held that the following non-electronic forms amount to valid signatures:
   • signing with an ‘X;
   • signing with initials only;
   • using a stamp of a handwritten signature;
   • printing of a name;
   • signing with a mark, even where the party executing the mark can write; and
   • a description of the signatory if sufficiently unambiguous, such as “Your loving mother” or “Servant to Mr Sperling”.
6. Electronic equivalents of these non-electronic forms of signature are likely to be recognised by a court as legally valid. There is no reason in principle to think otherwise.
7. The courts have, for example, held that the following electronic forms amount to valid signatures in the case of statutory obligations to provide a signature where the statute is silent as to whether an electronic signature is acceptable:
   • a name typed at the bottom of an email;
   • clicking an “I accept” tick box on a website; and
   • the header of a SWIFT message.
8. With specific regard to deeds and the witnessing requirements thereof, a deed must be signed in the physical presence of a witness who attests the signature. This is the case even where both the person executing the deed and the witness are executing / attesting the document using an electronic signature.

General guidance seems to be that a witness signature box should include a declaration that they were physically present at the time of signature. They can of course lie, but this is no different to the position with wet signatures.

[jpkeates]

Are you certain that it is not possible to legally do so? Or is it that you don't feel it is sufficiently proven?

Probably the latter, but that, essentially, means I believe the former.

DocuSign clearly have a different view, but I don't think that their assertion has been proven (and the fact that their supporting document is described as a white paper doesn't exactly fill me with confidence.)

I've found that posting on forums tends to be quite effective, other than when someone is being sarcastic or ironic.
But is less effective when someone says something in a kind of definitive way (which I tend to do).
If we were having this as an actual conversation there would be a lot more back and forth and "I think so"s and "are you sure"s.
And you would be able to tell from my face and tone of voice the things that I am confident about and things that I just believe to be the case.

I'm wrong quite a lot, but the collective wisdom of other users usually ends up with the right answer in the end.

[Hooper]

There are people who claim to offer that service, but it's just not possible to "witness" a digital signature.

Are you certain that it is not possible to legally do so? Or is it that you don't feel it is sufficiently proven?

Land registry site seems to suggest that you can witness a deed electronically in the same way that you would witness a document with a wet signature. i.e. witness physically present and both sign the document electronically.

When I asked HelloSign they did not have a procedure for deeds but DocuSign seems to have a specific process for deeds (expressly including deeds of guarantee) which they set out here https://www.docusign.co.uk/blog/elec...nessing-the-uk

[jpkeates]

I'm not aware of any digital service for the effective signing of a deed although from what I have read on here there seem to be agencies which do so.

There are people who claim to offer that service, but it's just not possible to "witness" a digital signature.

You'd have to somehow send a document to a device and require the principle and the witnesses to somehow sign it and return it.
And, currently, as far as I know, digital signatures are tied to the signee's credentials for the service, so the service provider can be reasonably sure that the person signing something is who they say that they are.
Having multiple people in one location signing things independently sounds complex.

At some point, the courts are going to have to devise some kind of mechanism, because property sales/purchases face the same challenge, but I suspect that the control is going to be to rely on a solicitor or conveyance being the witness (and they'll have already carried out proof of identity checks before the process gets to this point).

[Hooper]

I am keen to hear what methods of digital signatures members use. Docusign is the international market leader but seems a bit expensive. We are a bit behind here. We email out agreements and ask contracting parties to execute and send back to our freepost address or bring on the day to the completion meeting. Its not ideal but it has worked this way for many years

I'm not aware of any digital service for the effective signing of a deed although from what I have read on here there seem to be agencies which do so.

I use HelloSign for ASTs. I really like the interface. You can do 3 agreements a month for free which has worked OK for me so far. Their prices seem pretty affordable if you need to do a lot more.

[jpkeates]

It's not possible to sign a deed electronically, full stop, at the moment, in English Law.
There are plans to make some deeds available electronically to assist in automating property purchases, for example.

[flyingfreehold]

I am keen to hear what methods of digital signatures members use. Docusign is the international market leader but seems a bit expensive. We are a bit behind here. We email out agreements and ask contracting parties to execute and send back to our freepost address or bring on the day to the completion meeting. Its not ideal but it has worked this way for many years

[jpkeates]

Seriously?

You seem to be inventing problems. I am beginning to understand why you are so averse to the use of guarantees

I'm averse to guarantees because they seem to be, essentially, only useful as a moral pressure (although they are valuable in letting to students).
If someone doesn't seem able to afford a property, adding more complication to the transaction seems unwise.

Moreover, not accepting guarantees has not been a problem.

And, yes I am very serious about locked pdfs and checking documents haven't been changed.
I spent many years working with contracts, and you wouldn't believe some of the **** businesses tried on.

[Hooper]

Email is not a definitive record of anything.
They're much more easy to fake than most people imagine.

Everything is fakable. But if you send someone an email with a deed, AST and cover letter attached to it, then they print the deed, sign it and post it back to you, they are going to struggle to demonstrate convincingly that you did not send that email with those three attachments.

Currently the landlord is intending to start the tenancy before the guarantee is signed - so motivation might be an issue.

That's not the advice that was being sought. That is a later development in which they would both meet and sign it together in person. L pre-signing a document in order to motivate G does not even make sense in that context. Most importantly, we both agreed that agreeing to sign the deed after the AST had begun was a bad idea.

Having the document signed in front of a JP or notary is no help if someone changes the document before they sign it.

An invalid witness and a doctored agreement are two separate pitfalls, each easily avoided as described.

One advantage of the landlord signing the deed (which, to be fair, hadn't occurred to me until just now), is that they could also sign every page, making any "modification" more difficult to do.

I don't think that I have ever used a deed of guarantee that is more than a page long.
As explained, I get G to sign every page of the AST digitally, before T.

Any documents sent by any means should always be locked pdfs if sent by email and subject to the standard "holding the pages up to a window" test when they come back.

Seriously?

You seem to be inventing problems. I am beginning to understand why you are so averse to the use of guarantees.

Oh and ...

When was the last time you lost something in the post?

I am presently waiting for a special delivery that was due on Tuesday. It's very annoying.

[jpkeates]

I have no objection to adding L's signature as "belt and braces" but the important point is how to execute the deed both efficiently and effectively at a distance. Posting it in two directions increases L's workload, slows things down and increases the chance of paperwork going missing, causing delay. The other advantage of emailing it to G is that you can include the AST and a covering letter in the same email and have a definitive record of having done so.

When was the last time you lost something in the post?

Email is not a definitive record of anything.
They're much more easy to fake than most people imagine.

If one prefers to add L's signature then it makes sense to add it after L receives the original copy printed and signed by G. The motivation argument does not make sense to me. G's leading motivation to sign the deed is that if he does not the T does not get a tenancy. If that's not enough then G is probably not going to make a great guarantor! It seems highly speculative to argue that having L's (arguably unnecessary) signature already on it is at all likely to motivate G further.

Currently the landlord is intending to start the tenancy before the guarantee is signed - so motivation might be an issue.

The only issue which come to mind doing things this way is that you may wish to check that the deed has not been doctored before being returned and that the witness is genuine. You could always request that it be signed in front of a JP, notary or the like - although I have never done this.

Having the document signed in front of a JP or notary is no help if someone changes the document before they sign it.

One advantage of the landlord signing the deed (which, to be fair, hadn't occurred to me until just now), is that they could also sign every page, making any "modification" more difficult to do.

Any documents sent by any means should always be locked pdfs if sent by email and subject to the standard "holding the pages up to a window" test when they come back.

[jpkeates]

Most deeds I've ever signed have the date of execution blank, and the signatures are witnessed on dates that are not the date of execution.
That's how mortgage deeds and property sale/purchase agreements are conventionally signed, anyway.

[DPT57]

On the basis that both parties sign and their signatures are witnessed, I assume that the dates should be added later though? Wouldn't it be difficult to claim the document was executed as a deed if the dates of signatures are different?

[Hooper]

I am always happy to be corrected by [USER="14645"]

Usually I'm reluctant to suggest signing anything before sending it to the other party, because there's a risk that they'll simply keep it and only countersign it when they think it suits them, but in this case, the onus is on the guarantor to sign, and I think that having a signed document might encourage them to sign.

We seem to agree that L's signature is not necessary for the deed to be enforceable. I take your point that should L later need to rely on the deed G might argue - incorrectly - that the lack of L's signature makes it invalid and that this misapprehension by G could be avoided by including L's signature.

I have no objection to adding L's signature as "belt and braces" but the important point is how to execute the deed both efficiently and effectively at a distance. Posting it in two directions increases L's workload, slows things down and increases the chance of paperwork going missing, causing delay. The other advantage of emailing it to G is that you can include the AST and a covering letter in the same email and have a definitive record of having done so.

If one prefers to add L's signature then it makes sense to add it after L receives the original copy printed and signed by G. The motivation argument does not make sense to me. G's leading motivation to sign the deed is that if he does not the T does not get a tenancy. If that's not enough then G is probably not going to make a great guarantor! It seems highly speculative to argue that having L's (arguably unnecessary) signature already on it is at all likely to motivate G further.

The only issue which come to mind doing things this way is that you may wish to check that the deed has not been doctored before being returned and that the witness is genuine. You could always request that it be signed in front of a JP, notary or the like - although I have never done this.

[jpkeates]

You and Lawcruncher seem to differ on the need for both parties to sign. I was under the distinct impression that you conceded to his position in the thread linked to above.

I am always happy to be corrected by Lawcruncher, who is undoubtedly correct.

But common sense says that you don't want any obstacles to enforcement of an agreement, and you don't want to be explaining legal conventions to a reluctant guarantor.

Usually I'm reluctant to suggest signing anything before sending it to the other party, because there's a risk that they'll simply keep it and only countersign it when they think it suits them, but in this case, the onus is on the guarantor to sign, and I think that having a signed document might encourage them to sign.

However, as the OP seems happy to commence the tenancy without the guarantee in place, I'd question its neccessity.

[Hooper]

The deed needs to be signed (with witnesses) by both parties to the agreement.

You and Lawcruncher seem to differ on the need for both parties to sign. I was under the distinct impression that you conceded to his position in the thread linked to above.

Nevertheless, where timing is of an issue L can sign upon receipt of the original document from G - rather than to have to post the original in both directions.