Our previous blog covered getting Committee resolutions in place. Delivering on them will require a range of agreements to be completed. Although many authorities are still working hard to negotiate planning agreements, there is a risk that they pause completion in light of the challenges of getting the seal, the engrossments and the authorised person in the same place.
Difficult Deeds
Section 106 Agreements must be deeds, mirroring legal requirement for agreements disposing of land interests. They are also registerable as a Local Land Charge which appears on property searches.
Deeds must be signed in the “presence of a witness” and so in the COVID-19 world present a challenge in terms of:
- Signature
- Witness presence
The UK has had a system for electronic signatures since 2016 in combination with EU Regulations which will have retained effect post-Brexit (eIDAS Regulation). In March this year, the Government adopted the Law Commission’s confirmation in late 2019 that digitally verified electronic signatures work for deeds. Although the Land Registry only accepts e-signatures for a small subset of registerable dispositions, this does not affect Section 106 agreements (which are rarely making any disposal and are not registerable under the Land Registration Act 2002).
The eIDAS Regulation expressly provides for electronic seals.
So far so good, but while recent case-law (January 2020) accepts that witness attestation can be done ‘a few days’ after the act of witnessing, it also suggests that witnessing cannot be done remotely. It concludes that: “The question of whether attestation of a deed via video-link should be allowed is one of policy – a balancing of risk and convenience“.
Now is the time to make such policy and strike the balance.
Government Reforms
The Government could:
- Issue guidance confirming that ‘remote witnessing’ is lawful; or (given some of the concerns that will entail about evidential audit trail)
- Make specific provision for LAs to execute other than by seal in the LGA 1972.
- Replace the s.1(3) Law of Property (Miscellaneous Provisions) Act 1989 witness requirement with a recognition that eIDAS Regulation (trust certified) electronic signatures are at least as good as eyeball-to-ink witnessing of the past.
- Remove hurdles to the use of e-seals (such as references to ‘engraved’ seals in the Companies Act 2006).
That will require immediate acceleration of the current industry working group activity. Our next blog will deal with the extent to which LAs are stuck with seals and ways to speed up planning completions.
