Solicitors have been forced to re-think many of their usual processes and procedures under Covid-19 lockdown restrictions. The introduction by the Registers of Scotland (RoS) of the Digital Submission System for land registration requires a new approach to submission for registration.
In the initial “bedding-down” period for a new process, solicitors often find themselves spending an unduly large amount of time in agreeing the practicalities, which may depend on 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, we have set out a suite of Protocols for solicitors to agree and use.
The advantages of agreeing and following a Protocol are:
- Parties know in advance what is expected of them and last minute arguments about how completion is to proceed, or what one party is, or is not prepared to accept are avoided.
- Reduction in the number of undertakings that solicitors may be asked to give: by signing up to one of the Protocols, each solicitor agrees to comply with the actions in the Protocol.
- Each Protocol sets out clear assumptions on which following the Protocol is based, including ensuring that documents are validly signed, and the requirement for solicitors to hold and preserve the original documents, in case they are requisitioned by the Keeper.
Possession of the wet-signature hard copy document
Central to the Protocols is the requirement for the applicant’s solicitor to be able to certify to RoS that the submitted document is valid.
Many solicitors will want to receive 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 must check that the wet-signed hard copy document has been validly signed and witnessed e.g.: the signatures are in ink; the signatures have not been written on top of a label, on an erasure, or using a facsimile signature; the signatures are reasonably legible (i.e. they comply with section 7 of the Requirements of Writing (Scotland) Act 1995); and the signatures bear to be those of the parties signing.
The Protocols cater for both delivery situations, acknowledging that delivery can be achieved by electronic means (as a consequence of section 4 of the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015).
Confirmation of signing of wet-signed hard copy documents
Acceptance of electronic delivery of a pdf document will depend on confirmation from the firm sending the pdf to the receiving solicitor that the original has been checked, is in the possession or control of the sending firm, and that it bears to have been validly signed.
That confirmation should be given at the same time the pdf is being sent, and should be given by a partner of the sending firm. While best practice will be for the confirmation to be given by way of a signed letter on the firm’s headed notepaper, giving this confirmation by email from a partner in the firm is as binding on the sending firm. Individual firms may have their own internal requirements on the giving of undertakings that may need to be adhered to.
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, then they can either agree a hybrid protocol that addresses each party’s requirements, or make their own bespoke arrangements.
Either way, it is strongly recommended that they reach agreement at an early point in the transaction on how completion and submission for registration are to be handled.
Adapting the Protocols
The principles in the protocols can be easily adapted for documents of other types, and for submission of documents to the Sasine Registers.
We have not included timescales for submission of the applications for registration, as this would be a departure from current practice. It is left to each individual solicitor to ensure that submission is made promptly in accordance with good conveyancing practice.
In commercial transactions where the Lender’s solicitor requires the Purchaser’s solicitor to submit documents for registration within a particular timescale, such timescales may be covered by the usual undertaking (see PSG Undertaking by Borrower’s solicitor to Lender’s solicitor about completion matters). Parties can agree if they choose, to incorporate elements of the PSG Undertaking into a Protocol for the purposes of a specific transaction.
Digital Submission Protocols (Commercial):
Each party to receive and submit their own document:
One party to make multiple submissions:
Delivery of wet-signed hard copy documents:
Delivery of PDF copies of wet-signed documents: