Executing Documents During Lockdown

The Coronavirus (Scotland) (No.2) Act 2020 (the “Act”) received royal assent on 6 April 2020 and brings with it a number updates in response to the COVID-19 pandemic to ease some of the burden on everything from freedom of information requests to the UEFA European Championship.

Execution of Documents
One important change is in relation to the execution of documents where lawyers and clients alike have struggled in a time where face to face meetings are no longer the norm. E-signatures (see WJM Article on Electronic signatures [https://www.wjm.co.uk/news/electronic-signatures--the-new-norm-in-a-pandemic-world]) have helped to reduce the burden of signing documents in a small part however there remain some situations where an e-signature may remain unfeasible.

Schedule 4 Part 7 paragraph 9 of the Act provides that solicitors, advocates and notary publics do not need to be in physically the same place as another person when that person is: (1) signing and document; (2) taking an oath or (3) making an affirmation or declaration.

This allows for lawyers to witness or sign documents without being in the physical presence of the other person.
In practice, both parties should begin the process by each having an unsigned version of the document, in relation to which witnessing or notarial acts are to be performed, which can be transmitted one to the other via post, fax, email or other electronic means. During a video conference the document is signed scanned and a pdf emailed to the solicitor or notary to witness or notarise upon receipt.

If being notarised the declaration of the notary should make clear that the notarisation took place “by way of video conference”.

Registers kept by the Keeper of the Registers of Scotland

Another change brought about by the Act is how the Registers of Scotland treat electronic signatures.

The Act permits electronic signature and registration of documents in the Register of Inhibitions. The Register of Inhibitions notifies the public about individuals who can’t competently enter into property transactions usually due to bankruptcy i.e. it puts a block on someone being able to sell property and/or take out loans. The Register of Inhibitions had been closed to the majority of new applications since lockdown occurred as Registers of Scotland were not accepting paper applications. The Act allows for these to be filed electronically now with Registers of Scotland having created a new digital submission service.

It is worth remembering that the provisions of the Act are limited for the duration of the COVID-19 outbreak and are currently set to expire on 30 September 2020. This can be extended by the Scottish Government for two further periods of six months each.

Should you have any queries in relation to the Coronavirus (Scotland) (No.2) Act 2020 and how it impacts the execution of your documents, please contact us. WJM remains open (operating on a Home Working Policy for most) and ready to assist and advise you during this difficult time.