Legal Updates

Will Electronic Signatures Become the Norm?

Some changes have been made as to how important conveyancing documents are lawfully signed. These changes were made early in the novel coronavirus lockdown, but they may become a permanent feature of conveyancing practice. 

Since July 2020, HM Land Registry has been accepting electronic signatures. This is not something totally new. One form of electronic signature, the digital signature, has been legally enabled since the Land Registration Act 2002. What has changed is the high level of take-up by the profession since last year. During the lockdowns of the past year, the benefit of using remote signature methods is obvious. Perhaps what has also driven this change is that the use of a simpler type of witnessed electronic signature has been permitted. The term “electronic signature” can cover:

  • A simple replacement of a wet signature, which is easy to do but is potentially less secure. This would include witnessed electronic signatures and “mercury” signatures (described in more detail below).
  • A “digital signature” as permitted since 2002 involves a process that positively identifies the signatory and encrypts documents so they cannot be altered.

 

Legal Jargon – Plain English or Utter Drivel?

As the legal profession is one that benefits from clear communication, it is surprising how the language used by lawyers can sometimes be confusing. This may in part be because of the liberal use of legal jargon. In this article we will consider some common terminology used by the profession and look at what some lawyers have done to improve how they communicate. 

Let us start with a quote from a Professor of Law, Joseph Kimble, about why complicated writing persists in the modern legal profession: 

“Legalese persists for a lot of bad reasons – habit, inertia, fear of change, the overwhelming influence of poorly written opinions and forms, false notions of prestige, and any number of myths about plain language...” 

5 Critical Differences Between the Legal Systems in the USA and the UK

As the professional body for Legal Secretaries and PAs in the UK, ILSPA provides courses which are based on the English Legal System. However, one of the fascinating things about law and the legal sector in general is the variation between different legal systems and how they operate around the world. 

ILSPA’s partner, Simply Law Jobs, recently caught up with Russell Michelson from Jezic & Moyse to discover the five critical differences between the legal systems in the USA and the UK:

The USA’s and UK’s current legal systems have evolved from the same common law. Both countries share similarities when it comes to proceedings, presenting evidence, and rulings. However, as far back as the Bill of Rights being added to the US Constitution, certain distinctions grew in the legal systems of the two countries.

Statements of Truth Update

As part of the regular updates made to the Civil Procedure Rules 1999 (CPR), there was recently a significant change made to the wording used for statements of truth. This month we will look at why statements of truth are important and explain what has changed. 

Why are statements of truth important? 

Statements of truth are used in virtually all statements of case. If you have studied ILSPA’s Legal Secretaries Diploma, you will remember that a statement of case includes any document that makes up part of the “story” of your case. So if you are making a claim, the claim form you submit must include a signed statement of truth. If you are defending a claim, then your defence must be verified by a signed statement. Virtually every document submitted to court that helps support your version of events (e.g. witness statements, schedules and disclosure lists) relies on the use of a statement to assure the court that the details are true.   

Virtual Witnesses and Changes to Probate

Since lockdown, the social distancing rules have thrown up many issues for lawyers. Wills and probate lawyers warned the government at the start of the crisis that clients were finding it more difficult to make Wills. Worse still, this was happening at the very time when Wills were most needed. Many solicitors were able to find ways to still get the work done while maintaining social distancing, but this was not always possible. One of the most difficult problems was satisfying the requirement that a Will be properly witnessed.

In a welcome move, the government has made a temporary change to the witnessing rules allowing Wills to be witnessed by video link. The Ministry of Justice announcement represents a significant change to the 183-year-old rules which dictate how Wills (and codicils) are made in England and Wales.

Under the current rules, to be valid, a Will must be signed in the presence of two independent adult witnesses. This means physical presence. Under the new rules, virtual presence via video link has been permitted provided strict guidelines are followed.

The Re-Introduction of Commonhold

Those who have studied land law through an ILSPA course will already be familiar with the terms freehold and leasehold. These are legal definitions created by the Law of Property Act 1925 and relate to the extent of a person’s ownership of land. Another type of land ownership, commonhold, was introduced in 2002, but it struggled to establish itself and fewer than 20 commonhold developments have been built to date. This month, we are reporting on how this lack of interest in commonhold ownership may be about to change.

House Purchasing in 2020 – to View or Not to View

The COVID-19 pandemic has affected a lot of aspects of our lives, including buying houses. During the midst of the lockdown no viewings were taking place, causing stagnation in the housing market. As the rules have relaxed, people are now able to view properties they are interested in buying, but they must keep to the social distancing measures that have been put in place.

The government has advised house buyers to try to avoid viewing properties in person by doing it virtually where possible, but how does this balance with the legal risks of taking this approach?

The simple answer in terms of the legal risk of purchasing a property sold unseen is not to do it. Property viewings are the most basic form of due diligence that a buyer can do. Not only can they make sure the property “feels” right, but they are also trying to satisfy the contractual principle of caveat emptor (or buyer beware).

Here are five examples of potential issues that an informed buyer might spot when viewing a property. When you look at this list, consider whether you could spot them on a virtual viewing.

Family Disputes and Divorce During Lockdown

As with other sectors in the UK, the legal profession has been significantly impacted the past few months. In this article, we are focusing on what changes are being seen by those working in family law.

Family relations are currently being strained in unprecedented ways and many in the legal profession expect there to be a surge in family law-related disputes. This could include a significant rise in the rates of divorce and cases involving finances and children. Divorce will obviously only affect married couples, but issues of money and children can be a problem for anyone.

Firstly, in terms of divorce, the predicted increase is a notable trend during times of economic uncertainty. Just having more divorces alone might not present problems to those in matrimonial practice. For several years, online systems for dealing with divorce petitions have streamlined this work so that it is not a significant area of a divorce lawyer’s day-to-day job. However, just because the administrative side of divorce has been streamlined, it does not mean all aspects of family law work have shrunk. Key areas where lawyers have seen increased demand include:

A Challenging Time to Make a Will

This month we are focusing on Wills, as sadly, this is an area where lawyers are finding their services very much in demand. There are challenges at the moment for Wills specialists as they struggle to ensure that the requirements of the Wills Act 1837 are properly met. It is not the first time there have been calls to reform the Wills Act, but it is unlikely that a quick solution will be found. We will focus on the most pressing current issue (witness requirements), consider possible changes to the law and offer some practical solutions.

Background

To put the potential scale of the problem into perspective, there are two things to consider. First, the surge in demand for Wills is significant and likely to increase. The Law Society reported at the end of March 2020 that there had been a 76% jump in demand for Wills over a two-week period. This is not at all surprising given the daily reports on the rising number of coronavirus-related deaths. With several more months ahead where people will be confronted with issues of their own and loved ones’ mortality, many will try to put their affairs in order. Second, if there is no change to the current rule, urgent new Will instructions may go unanswered or be dealt with inappropriately.

Disclosure and the Consequences of Not Being Transparent

This month we will review what information a property seller should disclose as part of a conveyancing transaction and consider a recent case where a seller has been accused of misleading a buyer by saying nothing.

The starting point in any sale of land is to apply the contractual principle of caveat emptor or buyer beware. However, in practice it is rarely this simple. As part of a normal conveyancing transaction, a seller would complete a property information form in order to give a buyer detailed information about a property. The form has several versions, which cover sales of freeholds, leaseholds and new build residential properties. All of these forms have been designed by the Law Society as part of the national conveyancing protocol used in the majority of transactions in England and Wales.

Problems can arise when a seller decides not to disclose certain information about a property as they do not want to put a buyer off. In the most common version of the property information form (the TA6), a seller should disclose information about things such as:

•           Boundaries

•           Disputes with neighbours

•           Planned developments

•           Alterations to the property

•           Flooding

•           Occupiers

•           Drainage, sewers and utilities