Validity of a Deed - Deed signed later by the witness
Last month the Court considered whether a deed was validly executed where the witness had signed the deed at some point subsequent to its execution by the borrower and not in her presence.
Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 provides that an instrument is validly executed as a deed by an individual if, and only if, it is signed by the individual in the presence of a witness who attests the signature.
The borrower did not dispute that she had signed the mortgage deed in the presence of the witness. However, she claimed that, although she had signed in front of the witness, the witness had not signed the deed until later and not in the borrower’s presence.
The borrower sought to argue that to satisfy section 1(3), both the person executing the deed and the witness must sign the deed in each other's presence. The court disagreed. It held that on the proper interpretation of section 1(3), while it was necessary for the person executing the deed to sign in the presence of a witness, there was no additional requirement for the witness to sign in the presence of the executing party. The court considered that had the authors of the Act required such a stipulation then they would have expressly stated it in the Act.
The borrower's claim that the deed was unenforceable against her due to improper attestation therefore failed although she was successful on other (unrelated) grounds.
The formal requirements of deeds that they be signed in the presence of a witness, have been coming under scrutiny for some time now. It is recognised that such requirements create difficulties in the modern world of electronic signatures and exchanging digital copies of documents. It is, perhaps, not surprising that the court upheld a less prescriptive interpretation of section 1(3), particularly coupled with the fact that finding in favour of the borrower on the attestation point would have had the effect of penalising the mortgagor, who had loaned monies in reliance that the attestation requirements had been correctly followed.
Wood v Commercial First Business Ltd (In Liquidation) [2019] EWHC 2205 (Ch) (5 November 2019)
Posted on 12/04/2019 by Ortolan
