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:
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
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.
If the registrable deed under examination bears to be executed by fewer than a majority of the trustees, refer the application to a senior caseworker who can consider whether further evidence is needed, or if a limitation or exclusion of warranty may be appropriate.
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.
There is no requirement in the Requirements of Writing (Scotland) Act 1995 for the solicitor to be individually designed.
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.
Occasionally, registration staff will encounter signatures in non-Roman characters, such as Chinese logograms. In order for such a signature to achieve self-proving status and therefore comply with the requirements for registration set out above, the non-Roman characters must appear in the body of the deed and/or testing clause in addition to the signature applied to the deed – this approach ensures the signature meets the requirements of the 1995 Act i.e. the signature is the full name by which the granter is identified in the deed and/or testing clause.
For the avoidance of doubt, signatures which take the form of marks, initials or other variations which the granter regards as their ‘usual signature’ (e.g. full forename followed by initial of surname, or forename or surname alone) are not capable of being self-proving and should not be accepted.
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).
What should a registration officer check?
The following key subscription requirements must be checked:
the registrable deed appears to have been signed at the end of its last page (excluding annexations) by all the granters, or at least by one granter and on an additional page by all the others (but see also the guidance at Legal Writings (Counterparts and Delivery) (Scotland) Act 2015); and
the deed must be signed in one of the two ways set out above that mean that a deed is capable of being presumed to have been signed by the granter in terms of the 1995 Act; and
the witness should also sign on the last page of the deed; and the name and address of the witness must also appear on the face of the deed.
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.
If a liquidator, receiver or administrator has been appointed, the deed will be signed by the liquidator, receiver or administrator and witnessed in the normal manner.
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.