Legal Writings (Counterparts and Delivery) (Scotland) Act 2015

Introduction

On 1 July 2015, the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 came into force. The terms of this act mean that documents may be executed in counterpart, and this includes documents that can be registered in the land register. External guidance asks applicants to disclose that a document has been executed in this way in the application form, but an application should not be rejected if this is not the case.

What is Execution in Counterpart?

Execution of a document in counterpart means that, instead of all the parties to the deed signing the same copy of a document, the parties sign duplicate versions. The duplicate versions of the document are called counterparts, hence "execution in counterpart". However, each party to the document does not have to sign a separate counterpart; two parties could sign one counterpart, and a third party could sign another. 

For example, Mr White, Dr Scarlett and Mrs Orange enter into an agreement, and they decide to execute the agreement in counterpart. This could be done in a number of ways: 

(1). Mr White, Dr Scarlett and Mrs Orange all sign separate counterparts, three in total;

(2). Mr White and Dr Scarlett both sign the same counterpart. Mrs Orange signs another counterpart, so there are two counterparts in total. 

Either style (1) or (2) above is acceptable in terms of the 2015 Act. However if all the parties to a document sign the same copy of the deed, this is not execution in counterpart. 

What implications does the 2015 Act have for registration requirements?

A document executed in counterpart will be accepted in the land register if it satisfies all other existing registration requirements. The 2015 Act does not amend either the Land Registration etc (Scotland) Act 2012 or the Requirements of Writing (Scotland) Act 1995. The same standards that apply to all applications for registration also apply to applications for registration of documents executed in counterpart, including subscription. 

This means that, even if executed in counterpart, a deed presented for registration will still have to be witnessed. The certification of the application form by the submitting agent will serve as confirmation that a document has been subscribed in accordance with 1995 Act. However, in line with standard practice, registration officers will check this. With documents executed in counterpart, subscription may have to be checked across two or more duplicate versions of the same deed or across multiple subscription pages. For the avoidance of doubt, the witnessing should be on the counterpart as that of the subscription that is being witnessed. However, the key requirements that should be checked remain the same: see Authentication of Registrable Deeds. 

The 2015 Act does not contain provisions relating to testing clauses in a document executed in counterpart. Accordingly, there is no requirement for a testing clause in a document executed in counterpart to state that execution has been performed in this way. In any event, testing clauses are a convenient means of adding to a deed details of its execution but are not a statutory requirement. Therefore, it is possible (but not required) for a testing clause in this type of document to state that the document has been executed in counterpart. It is also acceptable for the way in which the witness name and designation is shown across a series of counterparts to vary: this detail may be disclosed in a testing clause or other acceptable ways. 

What will a document executed in counterpart submitted for registration look like?

The Act specifies that, upon execution, the counterparts are to be treated as a single document and that this single document may take one of the following two styles: 

(A). Both or all the counterparts in their entirety (i.e. two or more copies of identical deeds each with subscription pages); or

(B). One of the counterparts in its entirety, collated with the page or pages on which the other counterpart or counterparts have been executed (i.e. one full copy with just the subscribed pages from the other copies). 

For example, the "single document" version of a document executed in counterpart in style (A) above by Mr Pink, Mr Blue and Ms Green could take one of the following forms: 

• The counterpart signed by Mr Pink, the counterpart signed by Mr Blue and the counterpart signed by Ms Green;

OR 

• If two parties have executed the same counterpart, the counterpart signed by Mr Pink and Mr Blue in its entirety, and the counterpart signed by Ms Green in its entirety.
   

If the execution in counterpart was in style (B), the "single document" could take one of the following forms: 

• The counterpart signed by Mr Pink in its entirety, collated with the executed pages from the two counterparts signed by Mr Blue and Ms Green;

OR 

• If two parties have executed the same counterpart, the counterpart signed by Mr Pink and Mr Blue in its entirety, collated with the signed page from the counterpart executed by Ms Green;

OR 

• Again, if two parties have executed the same counterpart, the counterpart signed by Ms Green in its entirety, collated with the signed page from the single counterpart executed by Mr Pink and Mr Blue.
   

The Keeper takes the view that, for the purposes of registration, it is appropriate for the treatment of a document executed in counterpart as a single document to include the way in which it is submitted for registration. Accordingly, an application for registration of a document executed in counterpart should contain a "single document" that conforms to one of the two styles listed above. In turn, this will permit the Keeper to treat the deed as a single document for the purposes of registration. As described above, there are two styles of single document, but the Keeper is encouraging applicants to submit documents in style (B). 

Documents executed in counterpart must be duplicate and interchangeable. However, registration officers will not have to check or confirm that all the parts are identical. The agent's certification of the application form can be taken as confirmation of this point. If all the counterparts were not identical, the submitting agent would not be able to certify that the application met the general application conditions.

To summarise, the 2015 Act does not make any changes to the registration requirements. What it does do is clarify that it is acceptable, in Scots law, for a document to be executed in counterpart. This means that it may be necessary to check (i) the subscribed pages across multiple versions of the same document or (ii) multiple copies of the subscription page of a document in order to determine if these requirements have been met.

Annexations

Section 8 of the 1995 Act contains provision for the incorporation of annexations into document. Where a document relates to land, it should be signed on the last page (where it is an inventory, appendix, schedule or other writing), or on each page (where it is a plan, drawing, photograph or other representation).

Where a document executed in counterpart contains annexations that require to be signed by the granter, the Keeper encourages applicants to submit documents for registration or recording in style (B) format. The 2015 Act refers to the collation of pages which have been subscribed. However, the Keeper takes the view that a style (B) format of a document with annexations can be submitted for registration in the following form:

(i) A single counterpart in its entirety, together with the page or pages on which the other counterparts have been subscribed, and the signed pages from an annexation or annexations. 

The Keeper will also accept style (A) single documents, but applicants may wish to bear in mind the practical implications of submitting a large bundle of documents.

There is a further possibility for style (B) documents with an annexation. This will arise if a single version of an annexation to a main document is signed by all the parties. This might happen if there is a signing ceremony attended by all the parties to the deed, or if the annexation is sent round all the parties to be signed. However, it may be that the Keeper receives few applications that involve an annexation signed in this way, as signing ceremonies and round-robin signing might result in the loss of the benefits of execution in counterpart. However, if an annexation has been signed in this way, a style (B) deed should be presented for registration in the following form: 

(ii) A single counterpart in its entirety, plus the subscription pages from the other counterpart or counterparts and a single set of annexations signed by all the parties.

While the Keeper is encouraging applicants to submit style (B) single documents in form (i) above, the terms of the 2015 Act mean that style (A) single documents can also be accepted. This is because the terms of the 2015 Act appears to continue to allow annexations to be signed in the usual way. Style (A) single documents could take one of two forms, the first of which is: 

(iii) Both or all the counterparts, including the annexations to each separate counterpart with every necessary page of the annexation or annexations signed. 

The second Style (A) form arises because of the possibility of a single version of the annexations being signed by all the parties. Such a single document would be in the following form: 

(iv) Both or all the counterparts in their entirety, including the single version of the annexations signed by all the parties. 

The Keeper is encouraging applications in line with form (i) listed above. If a registration officer receives an application to register a document executed in counterpart with annexations that does not fall into one of the possibilities listed above, the application should be referred to a senior adviser. 

Referrals

Other than annexation-related referrals as described above, questions about documents executed in counterpart should be referred by the registration officer to his or her immediate referral officer in the first instance. Beyond this, the referral officer can refer the application to a senior adviser as appropriate.