Execution of deeds

England and Wales

Certain types of documents are not legally binding unless they are made in the form of deeds. Most commonly, the sorts of documents that need to be deeds are transfers of land, some leases or tenancies, mortgages, powers of attorney, wills and certain business agreements (eg, shareholders agreements, partnership agreements and even some employment contracts).

Whilst most contracts are only valid if some value (usually money) transfers between the parties, value doesn’t have to pass between the people making the deed for it to be valid. In fact, you can even have a deed binding on one person only (called a deed poll).

The time limit for bringing a claim under a deed is double the time limit for an ordinary contract (12 not 6 years).

Special rules about signature – or execution – apply to deeds; moreover, a deed has to be executed and delivered to be valid – see more on this below.

A deed will make it clear on its face that it is a deed and the parties will sign it 'as a deed'.

Scotland

While deeds do not have the same meaning as they do in England and Wales, they nevertheless have certain characteristics associated with them. In Scotland a deed must show an intention to create legal relations and should have a certain level of formality.

Most commonly, the term ‘deed’ is used to refer to formal documents which are not required to be in writing but which are, in practice, executed in accordance with the Requirements of Writing (Scotland) Act 1995. Examples of this are: trust deeds and deeds of assumption.

To execute a deed the formalities to execute other documents as set out in the Requirements of Writing (Scotland) Act 1995 are met. These include:

• Whether witnesses are required

• Who can act as a witness

• How to sign the document

• Where the parties must sign

How you execute a deed depends on what you are in law (ie an individual (or sole trader), company, partnership or limited liability partnership). Remember that deeds are not suitable for e-signing and must be printed out and wet-signed. Here is a summary of how the above legal entities execute a deed.

Individuals: must sign a deed in the presence of one or more witnesses.

Companies: can sign a deed in the following ways

• by affixing a corporate seal (an unusual approach these days)
• by one director signing in the presence of a witness
• by two directors or one director and the company secretary signing (no witnesses required)

Partnerships: can sign a deed in the following ways

• by all the partners signing in the presence of a witness
• by one partner signing who is authorised by power of attorney to sign on behalf of the partnership in the presence of a witness

LLPs: can sign a deed in the following ways

• by affixing the LLP seal (an unusual approach these days)
• by one member signing in the presence of a witness
• by two members signing (no witnesses required)

Before adopting one of the above methods, companies, LLPs and partnerships should check their articles or Partnership agreements (as applicable) for any special rules about executing deeds.

Particular rules may apply to deeds relating to land and the Land Registry has particular requirements. If in doubt, Ask a lawyer.

Wills are subject to their own rules – for more information read Executing your will.

A witness must have mental capacity and not be under the age of 18 (or under the age of 16 in Scotland). The same person may witness more than one signature but must sign and complete the details below every signature witnessed. A party to the deed cannot witness the signature of another party to the deed. Your local solicitor or Commissioner for Oaths may provide witnessing services.

To certify a copy of a document, you must have it signed and dated by a professional person, like a solicitor, although it does not have to be a solicitor. The professional person must see the original and the copy (physically in person) in order to certify it. For example, you could ask a bank or building society official, a councillor, chartered accountant, solicitor or notary.

However, note that they should not be related to you, living in the same address as you or in a relationship with you. 

In the past, a lot of formalities was attached to the 'delivering' of deeds, much of which is no longer relevant. Now, most deeds will be delivered when a party does something that the deed requires it to do (eg, in the case of a sale of property, when it hands over the keys to the property). Companies will be presumed to have delivered a deed when it has been executed. So, the long and short of it is that, in most cases, delivery is not something that has to be done by any special action or confirmation.