The requirements for when an individual executes a deed: A-ttesting case?

Elliot Cuozzo, a real estate trainee, considers a recent case on the witnessing of deeds.

When a deed is executed by an individual, Section 1 (3) of the Law of Property (Miscellaneous Provisions) Act 1989 (“LP(MP)A 1989”) provides it is only valid if it is signed by the individual executing it in the presence of a witness who attests the signature. However, does the person executing the deed need to be in the presence of the witness when the witness signs the deed? The LP(MP)A 1989 is silent on this point.

Amongst other issues, this key question came to a head in the recent High Court case of Wood v Commercial First Business Ltd (In Liquidation) [2019] EWHC 2205,

The facts 

In this case, a borrower who was a farmer challenged on a variety of grounds whether two commercial mortgages granted to her were valid and enforceable. This was after she fell into arrears with her mortgage payments and possession proceedings were then commenced against her. One of the grounds made by the borrower was that the attesting witness did not sign the deed in her presence.

Decision 

The borrower did succeed with some of the other unrelated grounds made as part of the claim. However, on the issue of the witness’s signature, the Court held that, upon proper interpretation of section 1(3), there is no need for the witness to sign in the presence of the executing party. The court considered whether it was intended for the LP(MP)A 1989 to include a requirement for the witness to sign in the presence of the individual executing the deed. It was determined that the omission of this requirement was unlikely to be accidental, as it would have been very easy for such a requirement to be have been stated in the LP(MP)A 1989 in the first place.

Implications 

When a deed is executed by an individual, there is no requirement for the attesting witness to sign the deed in the presence of the individual executing the deed. However, the Court’s decision does not change the fact that the individual executing the deed must still sign in the presence of a witness.

But what about companies?

The relevant provisions for companies also require that when a director executes a deed on behalf of the company, they must do it in the presence of an attesting witness. Again, there is no provision regarding whether the witness needs to sign in the presence of the director.

Given the similarities in these provisions, it appears likely that a court would reach a similar conclusion and deem it not necessary for the witness to sign in the presence of the director executing the deed.