Missives: when e-signature won’t work

Solicitors have been forced to rethink many of their usual processes and procedures because of COVID-19 lockdown restrictions. Working from home has led to many solicitors using electronic signatures in order to avoid the impracticalities of having to print out, wet ink sign, scan, and post hard copies. In particular, there has been an increase in the use of qualified electronic signatures to sign missives.

The Law Society of Scotland’s Property Law Committee would like to remind solicitors that signing missives electronically will prohibit them from being registered in the Books of Council & Session since, at the time of writing, the Books of Council & Session do not accept electronically signed documents.

This is particularly important to remember for missives of let. A landlord will usually want the missives of let to be registered in the Books of Council & Session for preservation and execution, so that they can enforce the missives, using summary diligence, if the lease itself has not been completed. Whilst it might perhaps be possible to register electronically signed missives in the sheriff court books for preservation and execution, so allowing for summary diligence, this would be unusual and would require to be first checked with the relevant sheriff court.

Some real-life examples of clients being unable to effect summary diligence because of electronically signed missives have been brought to the attention of the committee. These show how important it is to consider (as early as possible in the transaction and certainly before issuing a formal missive letter) whether it is appropriate to sign missives electronically. If the missives are to be registered in the Books of Council & Session, electronic signing will not be appropriate. If electronic signing is not appropriate, solicitors may wish to include a provision in their offer which expressly prohibits signing the missives electronically or they may prefer to adopt a less formal approach and simply agree with their counterpart, before the offer is issued, that the missives will not be signed electronically.

Fortunately, from 1 October 2022 this issue will cease to exist. Under The Registers of Scotland (Digital Registration, etc) Regulations 2022 (which, at the time of writing, are subject to approval by the Scottish Parliament), it will become possible to register electronic documents (PDFs), signed with a qualified electronic signature, in the Books of Council & Session.