The restrictions imposed by the COVID-19 lockdown have forced solicitors to rethink many of their usual processes and procedures, and with the introduction by Registers of Scotland of the digital submission system for land registration, solicitors need to address how to tackle the practical steps for the new approach to registration.
In the initial bedding-down period for any new process, solicitors can spend an unduly large amount of time in agreeing the practicalities. Factors that may need to be taken into consideration include the ability of individuals to print, scan, post or courier and receive documents.
To address such issues, and provide a clear set of procedures for dealing with delivery of documents and submission for registration, the PSG has formulated a suite of protocols for solicitors to agree and use. These are now available on the PSG website.
As with all of our documents, we welcome feedback on these protocols, which are likely to evolve over time, and will adapt to changes in the digital system.
There are advantages to agreeing and following a protocol:
- parties know what is expected of them: no last minute arguments about how completion is to proceed, or what one party is, or is not prepared to accept;
- fewer undertakings: signing up to one of the protocols means each solicitor agrees to comply with set actions and timescales;
- each protocol sets out clear assumptions on which following the protocol is based, including ensuring that documents are validly signed and that solicitors hold and preserve the originals of the documents, in case they are requisitioned by the Keeper.
Possession of the wet-signature hard copy document
Solicitors should bear in mind the requirement for the applicant's solicitor to certify to Registers that the deed is valid.
For many this will mean actually examining the wet-signed hard copy document. Others will be prepared to accept confirmation from the solicitor holding the document that it has been validly signed. Either way, a qualified solicitor needs to check that the wet-signed hard copy document has been validly signed and witnessed.
The protocols cater for both delivery situations, acknowledging that delivery can be achieved by electronic means (as a consequence of s 4 of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015).
Confirmation of signing of wet-signed hard copy documents
For electronic delivery of a pdf of the document, when sending the pdf a partner in the sending solicitor's firm should confirm to the receiving solicitor that it has been checked, is in the possession or control of the sending firm, and that it bears to have been validly signed.
A signed letter on the firm's headed notepaper would be best practice; however, giving this confirmation by email from a partner in the firm is as binding on the sending firm.
Using the protocols
No solicitor should feel pressurised into adopting one particular protocol over another. If all solicitors involved in the transaction cannot agree on the same protocol, they can either agree a hybrid protocol, or make their own specific arrangements. It is strongly recommended that the solicitors agree procedures for how completion and submission for registration are to be handled at an early point in the transaction.
The suite currently consists of six protocols for commercial transactions, with two simpler residential specific styles to follow.