what is a deed?
deeds in england and wales are written documents that must be executed (ie signed) in a certain manner in order to be legally binding. they carry a higher degree of formality (and are, therefore, usually stronger evidence of a legal commitment) than a simple contract.
certain types of documents are not legally binding unless they are made in the form of a deed. some of the most common sorts of documents that need to be deeds include:
-
some leases (ie tenancies)
-
mortgages
-
powers of attorney, and
certain other types of documents need to be deeds if they contain provisions appointing a power of attorney, which is often the case. these documents include:
-
some employment contracts (especially senior employment contracts)
whilst most contracts are only valid if some value (ie ‘consideration’), usually money, transfers between the parties, value doesn’t have to pass between the people making a deed for the agreement to be valid and binding. in fact, you can even have a deed that’s only binding on one person (called a 'deed poll').
under the limitation act 1980, the time limit for bringing a legal claim under a deed is generally double the time limit for an ordinary contract (12 years rather than 6 years). for more information, read statute of limitations.
special rules about signature (or 'execution') apply to deeds.
when is a deed valid?
the requirements for a valid deed are set out in the law of property (miscellaneous provisions) act 1989. in order to be a valid deed, a document must:
-
be in writing
-
make it clear on its face (ie on the document itself) that it’s a deed
-
be executed correctly, and
-
be delivered correctly
how are deeds executed?
how you execute a deed depends on what you are in law. for example, you could be an individual (or sole trader), a company, a partnership, or a limited liability partnership.
most deeds can be signed either on paper (ie wet-signed) or electronically. however, if you sign a deed electronically (or ‘e-sign’), you should be very careful to meet any formalities that the type of deed you’re signing requires. the formalities vary by the kind of deed and types of parties involved but often include strict witnessing requirements. for example, the requirement that witnesses are physically present when the deed is e-signed.
to safely meet the formality requirements for your deed it can, therefore, be safest to sign your deed physically in front of your required witnesses.
here are summaries of how different legal entities execute deeds:
individuals
individuals, including sole traders, must usually sign a deed in the presence of one or more witnesses. the witness(es) must then attest the signature (ie they must sign the deed themselves to confirm that they saw it be signed).
companies
a company can sign a deed in the following ways:
-
by affixing a the company seal (an unusual approach these days)
-
by one director signing in the presence of a witness who attests to their signing
-
by two directors signing (no witnesses are required)
-
by one director and the company secretary signing (no witnesses are required)
partnerships
a partnership can sign a deed in the following ways:
-
by all the partners signing in the presence of a witness who attests the signature
-
by one partner signing who is authorised by a power of attorney to sign on behalf of the partnership in the presence of a witness
limited liability partnerships (llps)
an llp 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 who attests the signature
-
by two members signing (no witnesses required)
other execution requirements
companies, llps, and partnerships should check their articles of association, llp agreement or partnership agreement (as applicable) for any special rules about executing deeds before adopting one of the above methods. if any such rules are set out, they should be followed.
particular rules may apply to deeds relating to land (eg a deed for the sale of a house). for example, hm land registry has particular requirements for executing deeds. read the government’s guidance to check which formalities you may have to meet when executing a deed related to land.
wills are subject to their own rules – for more information read executing your will.
witnessing
who can be a witness?
if a witness is required (or desired so that, even if not required, someone can give evidence about the deed’s signing if needed), the individual used as a witness must have mental capacity. they should not be under the age of 18 or be the partner or a family member of the person whose signature they’re witnessing.
the same person may witness more than one signature but must sign and complete the relevant 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.
how is a deed witnessed?
a witness should be present when the signature they’re witnessing is made. they should then sign their name on the deed next to a statement attesting (ie confirming) that they were present and saw the relevant person sign the deed. a witness’ identification details (eg name and address) should also be noted, in case they need to be found to provide evidence about the deed’s execution.
how are deeds delivered?
a deed must be delivered to become legally binding. this does not mean that a deed must be physically ‘delivered’ somewhere. rather, a deed is delivered when a party demonstrates (by actions or words) their intention to be legally bound by the deed. this usually occurs when a party does something that the deed requires it to do. for example, in the case of a sale of property, when the seller hands over the keys to the property.
companies are presumed to have delivered a deed when it is executed, unless contrary intentions are expressed.
essentially, in most cases delivery is not something that has to be done by any special action or confirmation. it usually occurs as part of the regular transactional (or other) process.
certification of documents
a certified copy is a copy of a document (eg a deed) that an appropriate professional has promised is an accurate and complete copy. certified copies can be used in more formal situations than uncertified copies due to this promise.
to certify a copy of a document, you must have it signed and dated by a ‘professional person’. for example, a solicitor, bank or building society official, councillor, chartered accountant, registered doctor, or notary. the professional person must physically see the original and the copy (ie in person) in order to certify it.
note that the professional person should not be related to, living at the same address as, or in a relationship with the person whose document they’re certifying.
execution of deeds in scotland
deeds in scotland are not the same thing as in england and wales. there is no general definition of a deed in scotland. in scotland, ‘deed’ often refers to a legal document (eg a contract) that has been registered with a court, or 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.
a deed should show an intention to create legal relations and should have a certain level of formality.
the requirements of writing (scotland) act 1995 sets out requirements that may, depending on the situation, need to be met to execute a document (eg a deed) in scotland. these include witnessing requirements (eg who can act as a witness if one is needed) and signing requirements.
