This guidance covers the execution in counterpart of documents in our registers.
Execution in counterpart is the process whereby all parties to a document sign a separate physical copy and then exchange the resultant copies so that each ends up with a set of each of the copies signed by the other parties. The aim is to create a legally enforceable document rather than having to arrange for all parties to meet for each to sign the same document.
The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 provides for the execution of documents in counterpart in Scotland. Applications for registration and recording of documents executed in this way will be accepted, provided that all other usual criteria are met.
Execution in counterpart is optional. Existing methods of signing multi-party documents remain valid.
Submit a document executed in counterpart
You can register or record documents executed in counterpart in the Land Register of Scotland, General Register of Sasines and the Register of Deeds. A document executed in counterpart will be accepted if it complies with all existing requirements for registration or recording in these registers.
In providing for execution in counterpart the 2015 Act does not change the general rules set out in the Requirements of Writing (Scotland) Act 1995. Documents executed in counterpart still must be in self-proving form for registration or recording.
The 2015 Act specifies that, upon execution, the counterparts are to be treated as a single document. This may take one of two versions:
- Both or all of the counterparts in their entirety; or
- One of the counterparts in its entirety, collated with the page or pages on which the other counterpart or counterparts have been subscribed
For registration purposes we encourage applicants to submit single documents in version 2. This way the document submitted for registration will not be unwieldy and registration and searching of the register will be more straightforward. However, we will also accept single documents that comprise both or all counterparts in their entirety.
It’s helpful if you disclose that execution in counterpart has been used. You can let us know in the 'additional information' parts of the land register, sasine register or Books of Council and Session application forms. For the avoidance of doubt, we won’t reject applications for a failure to disclose execution in counterpart.
Section 8 of the Requirements of Writing (Scotland) Act 1995 contains provision for the incorporation of annexations into documents. Depending on the content of the annexation, the granter may need to sign one or more pages in order to be regarded as incorporated into the deed. Where a document executed in counterpart contains annexations that must be signed by the granter, applicants should submit documents for registration or recording in version 2 format. The 2015 Act refers to the collation of pages which have been subscribed. However, a version 2 format of a document with annexations can be submitted for registration if it contains:
- one counterpart in its entirety, and
- the page or pages on which the other counterparts have been subscribed, and
- the signed pages from an annexation or annexations
We will also accept version 1 single documents, but applicants may wish to bear in mind the practical implications of submitting a large bundle of documents.
It is also possible for annexations to a main document executed in counterpart to be signed by all of the parties. This might be used, for example, where the annexation has already been signed by the parties. In these cases, the single document may be either:
- both or all of the counterparts in their entirety
- a single counterpart in its entirety along with the pages on which the other counterparts have been subscribed, along with a single set of annexations signed by all the parties
The land register
The land register application form includes a declaration that the application complies with the general application conditions in section 22 of the Land Registration etc (Scotland) Act 2012. Accordingly, signing the declaration in the application form will serve as confirmation that a document executed in counterpart has been subscribed in accordance with the 1995 Act.
In addition, with both version 1 and 2 single documents, we will accept the certification of the application form as confirmation that all the counterparts, whether submitted or not, are duplicate and interchangeable. If this were not the case, the application for registration would effectively be for two or more different deeds.
An application for registration of a deed purportedly executed in counterpart that has been properly executed will likely result in an inaccuracy in the register. In such cases there may have been a breach of the duty of care set out in section 111 of the 2012 Act.
Sasine register and Register of Deeds
We’ll process applications for recording of documents executed in counterpart in line with existing practice in these registers. We check deeds to ensure that they are in self-proving form, but we won’t check multiple counterparts (if a version 1 single document as described above is submitted) in order to make sure that they are duplicate and interchangeable. It is an applicant's responsibility to ensure that documents executed in counterpart are indeed duplicate and interchangeable. Where a version 2 single document is submitted, we will accept the application without seeking additional confirmation as to the content of the other counterparts.