Explanatory Note
(This note is not part of the Order)
This Order amends the Requirements of Writing (Scotland) Act 1995 (c. 7) (“the 1995 Act”) to permit electronic documents created within the Automated Registration of Title to Land (“ARTL”) system, and authenticated by means of digital signature, to be valid for the creation, transfer, variation or extinction of interests in land or for the constitution of contracts or obligations in relation to such creation, transfer, variation or extinction or the constitution of gratuitous unilateral obligations. It also amends the Land Registration (Scotland) Act 1979 (c. 33) (“the 1979 Act”) to introduce conditions upon which electronic applications for registration may be made and to permit that certificates of title may be issued as electronic communications.
The ARTL system will enable electronic registration of routine transactions affecting subjects registered in the Land Register of Scotland. Article 3(7) of the Order inserts a definition of the ARTL system into section 12 of the 1995 Act.
Article 3(1) and (2) of the Order modifies section 1(2) of the 1995 Act and inserts a new provision as section 1(2A) to permit that in the cases where subsection (2) previously required a written document, an electronic document created as an electronic communication within the ARTL system may also be used.
Article 3(3) modifies section 1(3) of the 1995 Act to apply the provisions governing personal bar to electronic documents.
Article 3(4) adds new sections 2A, 2B and 2C to the 1995 Act.
Section 2A provides that an electronic document is to be valid in respect of the formalities of execution if it is authenticated. To be authenticated the digital signature of each person by whom the document purports to be authenticated must be incorporated into or logically associated with the document, be created by the signatory in accordance with such conditions as the Keeper may direct and be certified.
By virtue of new section 2A(3) a digital signature is certified by a statement confirming that the signature, the means used to create, communicate or verify the signature or the procedure applied to the signature are a valid means of establishing the authenticity or integrity of the document. This reflects the meaning of certification used in section 7 of the Electronic Communications Act 2000.
New section 2B makes provision in relation to the content and publication of directions by the Keeper under section 2A.
New section 2C provides that a person who is party to an electronic document in more than one capacity need only authenticate it once to bind all capacities.
Article 3(5) of the Order adds a new section 3A to the 1995 Act. This provides that where an electronic document appears to have been authenticated by the granter the authentication shall be presumed to have been done by that person. The result is that electronic documents which are authenticated will have ‘self-proving status’ equivalent to that conferred on certain (e.g. witnessed) written documents by section 3(1) of the 1995 Act.
Article 3(6) disapplies section 5 of the 1995 Act, which concerns alterations to documents, in relation to electronic documents. No alternative provision is required as in the proposed ARTL system it will not be possible to alter an electronic document after authentication.
Article 3(7) introduces new definitions to the interpretation section of the 1995 Act. The definitions in relation to signatures are similar to the terms of the Electronic Signatures Regulations 2002.
Article 5, read with article 4, amends the 1979 Act. Paragraph (1) inserts new subsections (2A), (2B) and (2C) in section 4 of that Act. These permit the Keeper, by directions, to define the types of land dealing which may be subject of electronic registration applications, and to define the geographical areas in respect of which electronic applications for registration may be made.
Article 5(2) amends section 5 of the 1979 Act to permit Land and Charge Certificates to be issued as electronic communications, authenticated in such manner as the Keeper thinks fit.