Authentication of Registrable Deeds

General

Subscription, execution, authentication, and attestation, are all terms used in relation to the signing and/or witnessing of a deed. The Requirements of Writing (Scotland) Act 1995 applies to all documents executed on or after 1 August 1995. The old law remains relevant to deeds executed prior to 1 August 1995. However, as a matter of policy, the Keeper will accept all deeds that have been previously recorded in the Register of Sasines.

Section 23(1) in relation to the transfer of an unregistered plot, section 25(1) in relation to certain deeds relating to unregistered plots, and section 26(1) in relation to deeds relating to registered plots, of the Land Registration etc. (Scotland) Act 2012, all require that the deed being submitted for registration must be valid. In addition, in terms of section 22(1)(c) of the 2012 Act, an application for registration must not fall to be rejected by virtue of section 6 of the Requirements of Writing (Scotland) Act 1995.

Section 6(1) and (2) of the 1995 Act provide that, subject to an exception provided in section 6(3), it is not competent to register a traditional document (i.e. not an electronic document) in the Land Register unless the document can be presumed under section 3 of the 1995 Act to be subscribed by the granter, or where there is more than one granter, can be presumed to have been subscribed by at least one of the granters. Therefore the execution of the granter or at least one of the granters must be 'self-evidencing' in terms of section 3 of the 1995 Act. This is explained in further detail below. This rule applies to all the most common registrable deeds, such as a disposition, standard security, discharge, notice of potential liability for costs.

Section 6(3) of the 1995 Act provides that the requirement for self-evidencing status does not apply to:

1.  a document being registered in the Land Register, if an enactment requires or expressly permits such registration, notwithstanding that the document is not presumed to have been subscribed by the granter or by at least one of the granters; or

2.  the registration of a court decree in the Land Register. 

This means that, in some applications, the registration officer will need to consider deeds which do not require to meet the usual requirements for execution of the most common registrable deeds.

For applications to register a court order, see Court Orders that are Registrable Deeds for information on authentication.

For other deeds the execution of which do not require to meet the self-evidencing requirement, see examples below.

Registration Requirements

In terms of section 21(2) of the 2012 Act, the registrable deed must, at the date of the application for registration, meet the requirements for formal validity and self-evidencing status, where applicable. If a registrable deed does not meet the requirements, the application for registration should be rejected: there is no scope for the registrable deed to be amended whilst the application is in standover. The application should be cancelled (or rejected if it has not reached the application record) and the registrable deed returned to allow the applicant to correct their application before re-submission.

Distinction between Deeds which are Formally Valid and Deeds where Execution is Self-evidencing 

A writing executed on or after 1 August 1995 will be formally valid provided that it is subscribed by the granter or, where there is more than one granter, by all of them. This is subject to the exception for Deeds by Trustees executed by only a majority of them, set out below.

The 1995 Act makes a very clear distinction between a writing which is formally valid in that it has been subscribed, and a writing which is formally valid but also self-evidencing. For the deed to meet both requirements, the Act imposes an additional requirement to subscription, i.e. (in the case of a natural person) the signature of a witness plus the addition of the witness's name and designation. Self-evidencing deeds have a special status in law in that anyone relying on such a deed need not present evidence to prove its authenticity since attestation by a witness in accordance with the 1995 Act gives rise to the presumption that the deed has been subscribed by the granter, on the date and at the place stated in the deed or testing clause. However there is no presumption that the deed is legally effective. The deed could still be reduced in a court, but the challenger must provide sufficient evidence to show that there are good legal reasons why it is not legally effective e.g. fraud, forgery or one of the parties was coerced into signing.

To be self evidencing the deed must:

• bear to have been subscribed by the granter(s);

• bear to have been signed by a person as a witness of that granter's subscription and bear to state the name and address of the witness in a testing clause or equivalent.

In addition, nothing in the deed should suggest that it was not subscribed by the granter or that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;

(b) a witness happens to be a granter; 

(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;

(d) the witness did not witness the subscription; 

(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.

Section 3(4) of the 1995 Act also narrates additional potential points of challenge, in particular in relation to registrable deeds that the name and address of the witness is erroneous in any material respect, although the place and date of execution need not be self-evidencing in order for registration to be competent. If the subscription of the granter of a registrable deed is patently not self evidencing, the Keeper cannot accept the application for registration.

Self-evidencing by court docquet

Certain informalities can be made good by application to the court. Thus the lack of the signature of a witness can be cured and the document set up as self-evidencing by the court. Upon application, the court may cause the document to be endorsed with a certificate to the effect that it is satisfied that the document was subscribed by the granter, and the document would then be acceptable for recording. Omissions, such as the absence of a date or place of signing, can be made good in the same way, although these are not formal requirements under the Act. A document so certified is in the same position as if the formalities of execution had been complied with at the proper time, i.e. it benefits from the same presumptions.

Deeds by trustees executed only by a majority of them

The basic rule regarding the execution of a disposition of land is that the owner or owners of the property being conveyed must sign the disposition.

However, the position with a deed executed by trustees may not be readily apparent. In most instances the position will be governed by the terms of the Trust Deed which is unlikely to be submitted with the application. If the Trust Deed is silent then execution should be by the majority of trustees. That being so, execution by a majority of trustees will in most cases be acceptable, but without sight of the trust deed it will not be absolutely certain that this is the case. However, the terms of the certification in the application form cover the position and the applicant thereby certifies that the granter (i.e. the trustees executing the deed) have title to do so.

In addition, where the deed bears to be executed by a majority of the existing trustees, some concern may arise if there have been significant changes to the constitution of the trust since the property was last transacted upon. The resignation of trustees and assumption of new trustees is likely to be evidenced in mid-couples that will not be submitted with the application. Again, the certification covers this concern.

Subscription Requirements

Subscription of a document consists of the granter and the witness signing at the end of the last page of the main document, i.e. disregarding any annexation. The following exceptions apply to subscription:

• the Sovereign is the only person who can validly sign a deed at the top (which is known as superscription);

• it is competent for a blind person to sign a deed, but where the person wishes to do so they can appoint a person to do so for them - see notarial or vicarious execution below.

Notarial or vicarious execution

Where a person is blind or unable to sign a deed (otherwise than through a mental incapacity), section 9 of the Requirements of Writing (Scotland) Act 1995 provides a facility sometimes known as notarial execution or vicarious execution. A granter can give authority verbally, in the presence of a witness, to a specified class of people who are enabled by law to undertake the signing of a deed for such a granter, namely:

(1) a solicitor; or
(2) an advocate; or
(3) a Justice of the Peace; or
(4) a Sheriff Clerk.

Usually, the person signing the deed will read the deed over to the granter unless the granter declares that they do not require to read the deed to them. The deed must contain statements: (1) that the deed was read or was not read over to the granter, and (2) that the granter gave authority for the deed to be signed on their behalf.

What is an acceptable signature?

Signatures must:

• be applied to the registrable deed (not to a label placed on the deed);
• be applied by hand (not a stamp or facsimile).

If the granter or the witness is a person, the signature must conform to one of the following methods:

Option 1: The full name by which the granter is identified in the document or in any testing clause or its equivalent.

Option 2: A surname preceded by at least one forename (by the initial or abbreviation or familiar form of a forename).

These are the only forms of signature available in the case of attested writings. When a signature complies with one of the two options, there is no need for a testing clause to state that the granter is signing ‘his or her usual signature’. Where a person signs a deed in two or more capacities stated in the deed, e.g. X is signing as a trustee and as an individual, they only need to sign the deed once.

• It is acceptable for titled people to sign using their title, e.g. the Earl of Leith may subscribe ‘Leith’. In Scotland, married women may sign using their maiden name but this should be declared in the testing clause. If a person signs in more than one capacity, e.g. as executor and as an individual, a single signature is sufficient to bind that person in both capacities.

• Signatures must be a ‘voluntary, spontaneous act of the granter’. The hand may not be guided, nor can a pencilled signature be inked in (in terms of section 7 subsection (2) of the Requirements of Writing (Scotland) Act 1995 it is possible for a granter to sign a deed in pen, pencil or other writing implement therefore a pencilled signature is acceptable). The hand may be supported if held above the wrist – but this should be avoided except in extreme emergency.

• If the last page of a document contains insufficient space for all granters to subscribe, an additional page or sheet may be used for some of the signatures provided at least one granter signs at the end of the original last page of the document, but see also the guidance at Legal Writings (Counterparts and Delivery) (Scotland) Act 2015. 
• If the signature of any granter or witness is on a label, has been applied by a stamp or does not meet the expected standard suggested in the examples, the application should be referred to the registration officer's referral point. The application may require to be rejected on the basis that the deed is not ex facie valid. In limited types of registrable deed involving a local authority, a facsimile signature of the proper officer applied may be used, but the referral officer will consider this point. See Notices of Grant on Securities Section Information.
• If the deed appears to have been signed by a third party in place of the granter or any one of the granters, but no explanation for the potential discrepancy is provided in the narrative of the registrable deed or its testing clause or equivalent, the application should be referred to the registration officer's referral point. The application may require to be rejected for the signature of the granter not being self-proving.

Witness requirements

The witness must be designed by name as well as address; occupation is not required. The designation is separate from the signature. This means that it is not enough merely to add the address of the witness under the signature. The name must be repeated, because the 1995 Act requires both name and address in addition to the signature. It is normal practice for the full name of the witness to be stated in a deed, although the terms of the Act mean that a name stated as an initial and a surname, while unusual, should not be rejected. For example, "Johnny Castle" and "J Castle" are both acceptable.

If two or more granters sign a deed, only one signature of a single witness is required provided always that both, or all, granters subscribe or acknowledge their subscriptions at the same time. Otherwise, the witness requires to sign on each separate occasion of subscription or acknowledgement.

The principle again is that the witness must sign immediately after the event which they witness so that it is ‘one continuous process’. The event is of course either the act of subscription by the granter or the act of acknowledgement of the subscription by the granter. This means that it would be quite legitimate (although inadvisable) for a granter, say, to subscribe in August but delay acknowledging his signature to a witness until December, at which point the witness would then require to sign immediately. The same witness may evidence the signatures of any number of granters, and if so doing need sign only once. 

Witnesses require to be uniquely designed. For the avoidance of doubt, a postal town is not required if a house name or number, street and postcode are provided in the witness's designation. Any unusual variations should be referred to your referral officer.

In terms of section 3(4)(b) of the Requirements of Writing (Scotland) Act 1995, a party to a deed cannot competently witness the signature of another party to that same deed.

Process of execution

The execution of an attested writing is achieved as follows:

• The granter subscribes and the deed is formally valid;

• A single witness is required who must not be another granter;
• Either the witness sees the granter subscribe or the granter acknowledges his subscription to the witness;
• The witness signs thereafter (their signature must conform to the same requirements which apply to that of the granter).

Testing Clause

Use of a testing clause is not required. However, it is a convenient way to add the signing details of a deed including the name and designation of the witness(es) to a deed. Where one is used:

• it is always the last clause in the main body of a legal deed;
• it begins with the words IN WITNESS WHEREOF;
• those words must be on the same page as the main body of the deed along with the signatures of the granter(s) and witness(es);
• the purpose of a testing clause is to provide details of when and where a deed was signed by the granter(s) and the name and designation of a witness but a testing clause may deal with only some of those aspects and the deed should be read as a whole;
• the place and date of the signing of a deed are not essential to the deed being self-evidencing.

The primary purpose of a testing clause is to record particulars of execution, but its secondary purpose is to mention any alterations, interlineations or erasures which have been made prior to signing (see section on Alterations below). The testing clause cannot alter or add to the deed itself.

Where a testing clause is used, it must appear in its entirety above the granters' signatures, although either a long or short form may be used as per the examples below. However if there is an error in the testing clause that may be fatal, the testing clause can be started again. Normally in such cases the second testing clause will commence ‘that is to say’ and then the corrected testing clause will be narrated. The following are typical examples of testing clauses:

Since the 1995 Act, the traditional form of testing clause is now acceptable for notarial or vicarious execution (see below).

Subscription by Non-natural Persons

A non-natural person, for example a company or local authority, cannot sign a registrable deed personally. Therefore individuals will sign deeds on behalf of non-natural persons: in that regard, the standard of signatures must meet certain requirements. 

The sections below set out the special rules which apply for a deed granted by a non-natural person:

• to be ex facie valid; and 
• self-evidencing.

The first requirement can usually be fulfilled by a signature of an individual who is an officeholder (e.g. a director) or an authorised person. The second can usually be fulfilled by the signature, naming and designation of a witness or sometimes by use of the organisation's seal or the signature of a second officer of the organisation. Where the requirement is that a deed "bears to be signed" by an officer of that organisation, then this fact should be clear from the face of the document, either stated as part of the testing clause or by appending the capacity of the party to their signature. For the avoidance of doubt, there is no requirement that an individual signing on behalf of a non-natural person be named or designed.

Companies registered under the Companies Acts

Company is defined in section 12(1) of the 1995 Act by reference to the definition contained in the Companies Act in force at the appropriate date. Prior to 1 Oct. 2009, this was section 735(1) of the Companies Act 1985 (‘a company formed and registered under the Companies Acts’); from 1 October 2009 by incorporating section 1(1) of the Companies Act 2006 (‘a company formed and registered under this Act’). This does not include foreign companies which are discussed below in foreign companies.

Special rules are provided by section 7(7) and schedule 2 of the 1995 Act for subscription by companies and other forms of non-natural legal personae recognised by the law as having the capacity to transact with interests in land in their own right. The most recent provisions for execution by companies are provided by paragraph 3 of Schedule 2 of the 1995 Act. These provisions provide that a document shall be presumed to have been subscribed by the company where:

• it bears to have been subscribed on behalf of the company by a director, or by the secretary, of the company or by a person bearing to have been authorised to subscribe the document on its behalf;
• the document bears to have been signed by a person as a witness of that subscription and the name and address of the witness is in the document itself or in the testing clause. 

In addition, nothing in the document or in the testing clause or its equivalent indicates that it was not subscribed on behalf of the company as it so bears; or that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.

Companies double signatory method

It also remains competent for companies to execute documents (and have the benefit of the presumption of authenticity) by double signature. Paragraph 3 of Schedule 2 to the Act also provides that a document shall be presumed to have been subscribed by the company if it bears to have been subscribed on behalf of the company by:

• two directors of the company; or
• a director and secretary of the company; or
• two persons bearing to have been authorised to subscribe the document on its behalf.

There can be no mixing of categories: it is not permissible to have, for example, a director and an authorised person or any other permutation from the categories described above. 

Usually, these requirements are met clearly by positive statements made in the testing clause of a deed, selections of the appropriate office or status being made in a testing clause equivalent, or deletions of inappropriate office or status in the testing clause equivalent. For the avoidance of doubt there is no requirement that a director, company secretary, or authorised signatory signing on behalf of a company be named or designed.

Sometimes a deed is pre-prepared with a list of 'options' for the capacity of the signatory/ signatories for the company. In general, a selection will be made either by circling the appropriate capacity/office or deleting the non applicable options. On occasion, no selection of the applicable capacity is made. This is acceptable where all the possible combinations shown on the deed are acceptable, bearing in mind that a company can have only one company secretary, in which case the officer can assume that both do not purport to act as such, provided the other capacities given are acceptable in combination. 

A lack of selection will lead to rejection in some cases, where the officer cannot tell from the face of the deed that the actual signatories fit within the three different forms permitted. There are acceptable and unacceptable examples set out below.

Care should be taken where one company is acting as the company secretary or as an authorised signatory of another company. In such circumstances, the authentication requirements must be met in respect of both companies. 

Foreign companies

Under the law of Scotland, deeds concerned with heritable property require to be executed according to the law of Scotland, even although the granter of the deed is established under a foreign law or the deed will be executed abroad. Following from this, it is the Keeper's policy that a deed being presented for registration in the Land Register granted by a foreign corporate body or company must at minimum be executed in accordance with the law of Scotland and be self-proving.

For deeds or documents executed on or after 1 August 1995 foreign companies require to execute registrable deeds in accordance with the provisions contained in paragraph 5 of schedule 2 of the 1995 Act, even although the granter of the deed is established under a foreign law or the deed has been executed abroad. This provides that the document shall be presumed to have been subscribed by a member, secretary or authorised person and by the body where a document bears to have been subscribed on behalf of a body corporate by:

• a member of the body's governing board, or if there is no governing board, a member of the body;
• the secretary of the body; or
• a person bearing to have been authorised to subscribe the document on its behalf;

and the document bears:

• to have been signed by a person as a witness of that subscription, and the name and address of the witness is in the document itself or in the testing clause or its equivalent; or
• if the subscription is not so witnessed, to have been sealed with the common seal of the body.

In addition, there must be nothing in the document or testing clause or equivalent indicating that it was not so subscribed as it bears to have been so subscribed; or that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process; or
(f) that it was not sealed or that it was not validly sealed as it was not sealed by a person with authority to do so or was not sealed on the date on which it was subscribed on behalf of the body.

It should be noted that the presumptions arising do not include presumptions that a person bearing to subscribe the document was a member of the body’s governing board, a member of the body or the secretary of the body was such member or secretary; or that a person subscribing the document on behalf of the body bearing to have been authorised to do so was authorised to do so. Nonetheless, evidence of authorisation does not require to be enclosed with the application nor, if evidence is enclosed, does the evidence require to be examined. The certification on the application form will be relied upon.

Guidance on the differences between foreign companies and foreign partnerships

It can be difficult to recognise a foreign partnership for what it is, or to recognise the difference between a foreign company and a foreign partnership, especially when a business name is expressed in another language. To help staff overcome this problem, information about various types of business organisation found in other parts of Western Europe is provided. The information is probably incomplete as business organisations other than those listed may exist.

European Economic Interest Groupings

A European Economic Interest Grouping or EEIG is a form of supra-national consortium, designed primarily to encourage co-operation between businesses of all shapes and sizes which carry on their activities in different member states of the European Union. It is essentially a creature of EU Law and has been recognised in UK law since 1989 with the European Economic Interest Grouping Regulations 1989 (SI 1989 No.638). It is, moreover, a unique type of entity in that it contains elements of both companies and partnerships.

EEIGs are relatively rare and there are no known examples of EEIGs doing business in the Scottish property market. However, the possibility exists, and staff should refer to the following comments and instructions when examining a deed to which an EEIG is a party.

If an EEIG's name is in English, little difficulty will be encountered in recognising it. The words ‘European Economic Interest Grouping’ or ‘EEIG’ must appear in the name. Unfortunately, authorised equivalents in the other languages of the EU may be used instead, as follows:

In the UK, an EEIG is given the status of a body corporate (paragraph 3 of the 1989 SI) - unlike a partnership. The Keeper will, therefore, accept that an EEIG can deal with heritable property in its own name, without trustees acting on its behalf. Settlers should ensure that no additional information is provided with the application that would indicate this is not the case in a particular instance.

There are no official rules about the execution of deeds by EEIGs. It is assumed that a deed granted by an EEIG may be signed by its manager or managers; the registration officer should accept that it has been signed in accordance with the EEIG's contract of formation.

Paragraph 18 of the 1989 SI applies certain provisions of the Companies Act 1985 and the Companies Act 2006 to EEIGs, including in particular Part 25 of the 2006 Act for the purpose of the creation and registration of charges, however the Keeper does not require any evidence this has been complied with. 

Any questions about these instructions should be referred to a senior caseworker.  

Limited Liability Partnerships

The Limited Liability Partnerships (Scotland) Regulations 2001 amended the terms of the 1995 Act to set out that where the granter of a document is a limited liability partnership, the document is validly subscribed if it is signed on behalf of the partnership by one of the members.

To establish a self evidencing document, the Regulations provide that a document shall be presumed to have been subscribed by the limited liability partnership where:

• it bears to have been subscribed by two members of the partnership; or
• it bears to have been subscribed by one member of the limited liability partnership and it bears to have been signed by a person as a witness to that subscription and it states the name and address of the witness.

It is competent for an LLP to grant a power of attorney, and for that attorney to sign on behalf of the LLP. In this instance, the deed should state it is signed by the attorney for the LLP, not for a member of it.

Where a member of the LLP, rather than the LLP themselves, has granted a power of attorney authorising someone to sign on behalf of the LLP, the application should be referred to a senior case worker.

Nothing in the document, or in the testing clause or its equivalent, should indicate that it was not subscribed on behalf of the limited liability partnership as it bears to have been so subscribed; or that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process.

The presumptions set out above as to subscription of a document do not include a presumption that a person bearing to subscribe the document as a member of the limited liability partnership was such member.

Partnerships

This paragraph relates only to documents which run in the name of the partnership itself, i.e. where the granter is the firm and not trustees for the firm. For deeds to which trustees of the firm are parties, signature by all the trustees in the presence of a witness (or by each of the trustees separately in the presence of their respective witnesses) is required, but see above at Deeds by Trustees executed only by a majority of them.

Who can sign and how they sign are the two points a registration officer must consider. Paragraph 2 of Schedule 2 of the 1995 Act sets out the statutory requirements in the 1995 Act:

• a partner or an authorised person may sign;
• a person signing on behalf of a partnership may sign in their own name or the firm name.

An authorised person is someone who has an implied authorisation and it may be universal or it may be specific to a particular deed. The authorisation need not be in writing, e.g. a qualified assistant could sign missives on behalf of a law firm. The Keeper will accept documents signed in this way where the signatory has not stated his or her identity or authority on the face of the deed. There is no need for the deed to "bear to" be signed.

To establish a self evidencing document, a witness must also sign the document.

A limited partnership is recognised in Scots law as a type of partnership. Accordingly, the rules above also apply to execution of deeds by this type of non-natural person.

For further information on Partnerships generally see Partnerships. 

Local authorities

Local authorities execute deeds through the signature of an employee specially authorised for this purpose and who is usually called a "proper officer". Under the 1995 Act a document is presumed to have been subscribed by the proper officer of a local authority and by the authority itself if the document bears to have been subscribed on behalf of the local authority by the proper officer of the authority and the document bears:

•  to have been signed by a person as a witness of the proper officer's subscription and to state the name and address of the witness; or
• (if the subscription is not so witnessed), to have been sealed with the common seal of the authority.

In addition nothing in the document, or in the testing clause or its equivalent, should indicate that it was not subscribed on behalf of the authority as it bears to have been so subscribed; or that it was not validly witnessed for any of the following reasons:

(a) a signature bearing to be the signature of the witness is not such a signature, whether by reason of forgery or otherwise;
(b) a witness happens to be a granter;
(c) the witness did not know the granter, or was under the age of 16 years, or was mentally incapable of acting as a witness;
(d) the witness did not witness the subscription;
(e) the witness did not sign after the granter's subscription, or the granter's acknowledgement of his subscription and the signature of the witness were not one continuous process. 

If the deed bears to have been sealed with the common seal of the authority nothing in the document, or in the testing clause or its equivalent, should indicate that it was sealed by a person without authority to do so or was not sealed on the date on which it was subscribed on behalf of the authority.

No evidence of the signatory's status as a proper officer requires to be sought or submitted with the application. In terms of Schedule 2, Paragraph 4 of the Act a person purporting to sign on behalf of a local authority as an officer shall be presumed to be a proper officer of the authority. 

Use of facsimile signatures of proper officer

In respect of local authorities, section 193 of the Local Government (Scotland) Act 1973 allows for the execution of notices by way of signature or by a stamp or facsimile of the signature of a proper officer. Attestation by one witness, or alternatively sealing with the seal of the local authority, is also required.

Building Societies, Co-operative and Community Benefit Societies and Universities 

Paragraph 5 of schedule 2 to the 1995 Act makes provision for ‘other bodies corporate’. This category covers organisations such as building societies, co-operative and community benefit societies (previously known as industrial and provident societies), and the ancient universities. It does not include corporate bodies provided for elsewhere in the Act (e.g. limited companies), nor does it include corporate bodies whose mode of execution is provided for in a statute which is not amended by the 1995 Act.

A document granted by one of the bodies affected by paragraph 5 is formally valid if it bears to have been signed on its behalf by:

• a member of the body's governing body (usually a director or equivalent) or, if there is no governing body, a member of the body;
• the secretary (by whatever name he is called); or
• an authorised signatory.

For the document to be not merely valid but self-evidencing, it must either be attested by a single witness or be sealed by a person having authority to do so. Compliance with the above formalities does not raise any presumption that the signatory was who he or she is supposed to be or was authorised to sign, or that the seal was affixed by a person authorised to do so. In the Land Register, the Keeper will rely upon the certification on the application form.

Special Parties

Section 7 (6) of the 1995 Act states that the section is without prejudice to any rule of law relating to the subscription or signing of documents by members of the Royal Family, by peers, wives of peers or eldest sons of peers. Thus it is acceptable for such parties to sign using their title, e.g. the Earl of Seafield may subscribe ‘Seafield’.

In Scotland, married women may sign using their maiden name but this should be declared in the testing clause.

 If a person signs in more than one capacity, e.g. as executor and as individual, a single signature is sufficient to bind that person in both capacities. See below for further information on parties acting in special capacities.

Individuals in Special Capacities

Trustees and Executors

A deed which has been subscribed by a quorum of the Executors or the Trustees named in the deed, is acceptable.

Receivers, administrators and liquidators

Such persons are authorised to execute deeds on behalf of the company in relation to which they are appointed. A deed executed by a receiver, administrator or liquidator will be formally valid if subscribed the receiver, administrator or liquidator but their signature must also be self-evidencing in order to meet the requirements of the 2012 Act and the execution should be attested by a witness.

Ministers of the Crown and office-holders

Formal validity is achieved by the subscription of the granter or an authorised signatory. Self-evidencing status is achieved by the attestation of a single witness. With effect from 1 July 1999, those functions previously exercisable by Ministers of the Crown (including but not confined to the Secretary of State for Scotland) which come within the remit of the Scottish Parliament’s powers and responsibilities will, by virtue of section 53 of the Scotland Act 1998 (hereinafter referred to as ‘the Scotland Act’), be transferred to and thereafter be carried out by the Scottish Ministers. Office holders are those who hold an office created by Act of Parliament.

Power of attorney

A power of attorney is a document by which one legal persona (be it a natural person, a company or any other entity with separate legal personality) empowers a second legal persona to carry out some action on his, her or its behalf. The person or other entity so appointed (i.e. the grantee of the power of attorney) is called the attorney; the granter of the power of attorney is referred to as ‘the principal'. For guidance on the legal capacity of the attorney see Legal Capacity.

While a deed will normally run in the name of the principal, there is no prohibition on it running in the name of the attorney. Where the deed runs in the name of the principal, the Keeper is only likely to be aware that an attorney is acting on behalf of the principal by their execution of the deed. The fact that it is the attorney and not the principal executing the deed will normally be declared within the testing clause. See examples below for both forms of narrative.

Scottish Ministers and Execution under the Scotland Act

Deeds executed on or after 1 July 1999 relating to a function which has transferred to Scottish Ministers will, by virtue of Section 59(1) of the Scotland Act, either be granted by or be in favour of ‘Scottish Ministers’. For the avoidance of doubt, the term ‘Scottish Ministers’ is what will appear in deeds. Subsection (4) of that section further provides that a deed shall be validly executed by the Scottish Ministers if it is executed by any member of the Scottish Government. The Scottish Government comprises the First Minister, those Ministers subsequently appointed by the First Minister, the Lord Advocate and the Solicitor General for Scotland.

It will not be competent for deeds executed before 1 July 1999 to be either in favour of or be granted by Scottish Ministers. Up until that date all deeds had to be granted by or be in favour of a Minister of the Crown. The only exception is if the deeds were in favour of the Lord Advocate (section 62) or ‘The Scottish Parliamentary Body’ (section 21). It is also competent for deeds to be executed under the delegated authority of the aforementioned members of the Scottish Government.

Alterations

Alterations (sometimes called vitiations) are defined as including interlineations, marginal additions, deletions, substitutions, erasures or anything written on an erasure. The definition is wide enough to include anything added to a deed after it has been typed, except for additions in spaces deliberately left blank for that purpose. A fundamental distinction is drawn between alterations made before subscription and alterations made afterwards.

The 1995 Act provides that an alteration made before subscription shall form part of the document as so subscribed: it is legally effective. In practice, it may not be clear whether an alteration was made before or after subscription, so the 1995 Act also provides that if the alteration is declared in the testing clause in terms which state that the alteration was made before the document was subscribed, the presumption arises that such was the case.

Alterations do not form part of the writing unless they are ‘rescued’ by being signed afresh by the granter and (if the alteration is to be not just valid but also self-evidencing) a witness. It is competent to register a registrable deed with an alteration even though the alteration is not self-evidencing in respect of its having been made before subscription. However, the deed should be ex facie valid in the sense that nothing should suggest that the alteration was made after execution.

This is acceptable, but not desirable.

Schedules and Annexations in General

Provision is made in section 8 of the 1995 Act for authentication of schedules, plans and other annexations such that they are considered to form part of the registrable deed subscribed by the granter. The rules for these annexations are different as between (1) ‘ordinary’ annexations and (2) plans and other forms of description attached to documents relating to land. Both types of annexations must be properly incorporated into the deed but only the second type require to be signed by the granter(s) of the deed in order to fulfil this requirement. 

The granter or granters can sign anywhere on the plan or last page of the annexation, subscription is not necessary. If there are numerous granters and there is insufficient space to sign, the same rules apply to signing on an extra page as apply to deeds in general. For the avoidance of doubt, a witness does not need to sign the plan or annexation. 

If an annexation is not properly incorporated as defined in the rules set out in the paragraphs below, the application for registration will require to be rejected as the deed is not ex facie valid.

"Ordinary" annexations which do not describe or show all or any part of the land

Any ordinary annexation to a registrable deed is to be regarded as properly incorporated if it is both:

• referred to in the deed; and
• identified on its face as being the annexation referred to in the deed.

In other words there is cross-referencing. On the annexation this is usually done in similar terms to the following e.g.:

‘This is the schedule referred to in the foregoing Standard Security by A in favour of B dated …’. 

This is known as a docket. If a docket is inadequate in its terms there may nevertheless be sufficient identification on the face of the annexation to supplement the information in the docket, such as an address. Examples of acceptable identification other than by a docket are set out below:

The foregoing examples are not comprehensive. Doubtful cases should be referred to the registration officer's referral point, who will liaise with a senior caseworker as necessary. 

The Schedule need not be physically attached to the deed and although the general rule for an ordinary annexation is that it need not be signed, if the deed itself refers to a signed schedule, e.g. ‘the Schedule annexed and signed as relative hereto’, then the schedule must be signed. Failure to sign in that situation could mean that the schedule has not been properly identified within the terms of the 1995 Act.

Additional requirements for plans and descriptive schedules relating to land

In addition to meeting the requirement for 'ordinary' annexations, an annexation consisting of a plan or a verbal description or representation of all or any part of the land affected, requires to be signed (but not necessarily subscribed) by the granter as follows: 

• in the case of a schedule which consists only of plans, drawings, photographs or other visual representation of the subjects, every page requires to be signed;
• in the case of a schedule which is a written description of all or any part of the land the deed relates to, it is only the last page that has to be signed;

• any schedule which contains both types of information must be identified on its first page as being the annexation as referred to in the deed and signed on the last page. In addition, each page which is a plan, drawing, photograph or other visual representation of the subjects should also be signed, although these pages do not then require a separate docket.

Annexations and the use of adhesive labels

A signature written on a piece of paper or a label and stuck onto a plan or other annexation is contrary to section 8 (2) of the 1995 Act. This section clearly indicates the need to sign the annexation itself. It is not uncommon to find a docket has been affixed to an annexation of a deed but again this is equally unacceptable. The 1995 Act clearly states that an annexation must be identified ‘on its face’. It follows that writings and signatures on adhesive labels are to be disregarded as ineffectual. However, the use of an adhesive label for a docket will not automatically make a deed unacceptable for recording or registration because there may be other identification on the face of the annexation which is sufficient to permit its acceptance.