The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 comes into force on 1 July 2015, and provides for the execution of documents in counterpart in Scotland.
This follows the Scottish Law Commission's report on Formation of Contract: Execution in Counterpart, published in April 2013.
Applications for registration and recording of documents executed in this way will be accepted, provided that all other usual criteria are met.
The keeper anticipates receiving application to register (or record) documents executed in counterpart in the land register, Register of Sasines and the Register of Deeds and Probative Writs in the Books of Council and Session. A document executed in counterpart will be accepted if it complies with all existing requirements for registration or recording in these registers.
In providing for execution in counterpart the 2015 Act does not change the general rules on when writing is required, on validity and on self-proving status of documents. They remain as set out in the Requirements of Writing (Scotland) Act 1995 and documents executed in counterpart will continue to require to be in self-proving form for registration or recording.
The 2015 Act specifies that, upon execution, the counterparts are to be treated as a single document, and that this may take one of two versions:
- Both or all of the counterparts in their entirety; or
- One of the counterparts in its entirety, collated with the page or pages on which the other counterpart or counterparts have been subscribed.
The report and the explanatory notes to the 2015 Act suggest that a version 2 single document would most commonly be used for registration purposes. To do so means that the document submitted for registration will not be unwieldy and it will make registration and searching of the register more straightforward. The keeper agrees with this and would encourage applicants to submit single documents in this version. However, single documents submitted that comprise both or all counterparts in their entirety will also be accepted.
In order to assist the keeper in identifying deeds executed in counterpart it would be helpful if applicants disclosed that this method of execution had been used. This may be done in the 'additional information' parts of the Land Register, Sasines or Books of Council and Session application forms. For the avoidance of doubt applications will not be rejected for a failure to do so.
Section 8 of the Requirements of Writing (Scotland) Act 1995 contains provision for the incorporation of annexations into documents. Depending on the content of the annexation, a page or pages may need to be signed by the granter in order to be regarded as incorporated into the deed. 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 version 2 format. The 2015 Act refers to the collation of pages which have been subscribed. However, the Keeper takes the view that a version 2 format of a document with annexations can be submitted for registration in the following form:
- one of the counterparts 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 version 1 single documents, but applicants may wish to bear in mind the practical implications of submitting a large bundle of documents.
It is also possible for annexations to a main document executed in counterpart to be signed by all of the parties (i.e. signed at an all-party signing ceremony or by the round robin method). This might be used, for example, where the annexation has already been signed by the parties. In such a case the single document may be both or all of the counterparts in their entirety or a single counterpart in its entirety along with the pages on which the other counterparts have been subscribed and a single set of annexations signed by all the parties.
Registration of documents executed in counterpart in the land register
The land register application form includes a declaration that the application complies with the general application conditions in section 22 of the Land Registration etc (Scotland) Act 2012. Accordingly, signing the declaration in the application form will serve as confirmation that a document executed in counterpart has been subscribed in accordance with the 1995 Act.
In addition, with both version 1 and 2 single documents, the keeper will accept the certification of the application form as confirmation that all the counterparts, whether submitted or not, are duplicate and interchangeable. If this were not the case, then the application for registration would effectively be for two or more different deeds.
Where an application is made for registration of a deed purportedly executed in counterpart and it turns out not to have been properly executed that will likely result in an inaccuracy in the register. In such cases there may have been a breach of the duty of care owed to the Keeper set out in section 111 of the 2012 Act.
Further guidance on application for registration in the land register is available on our website.
Register of Sasines and the Register of Deeds and Probative Writs in the Books of Council and Session
The keeper will process applications for recording of documents executed in counterpart in line with existing practice in these registers. The deeds will be checked by staff in these registers to ensure that they are in self-proving form, but staff will not check multiple counterparts (if a version 1 single document as described above is submitted) in order to make sure that they are duplicate and interchangeable. The keeper takes the view that it is an applicant's responsibility to ensure that documents executed in counterpart are indeed duplicate and interchangeable. Where a version 2 single document is submitted, the keeper will accept the application without seeking additional confirmation as to the content of the other counterparts.