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Summary Creation of deeds
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Summary notes on the property law topic of the creation of deeds
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Creation of Deeds:A deed is a written instrument which is executed with the necessary formality and by which an
interest, right or property passes or is confirmed, or an obligation binding on some person is created
or confirmed.
Definition and purpose:
A deed is a written instrument which is executed with the necessary formality and by which an
interest, right or property passes or is confirmed, or an obligation binding on some person is created
or confirmed.
A deed is technically a type of ‘specialty’: a term historically applied to contracts for debts or to
contracts entered into under seal.
Deeds should be contrasted with simple contracts under English law that (unlike a deed) may be
made in writing without the formalities required for a deed or orally. The reason for the existence of
deeds, as distinct to simple contracts, has been articulated by the Law Commission as:
• evidential: providing evidence that the maker did enter into the transaction and therefore
providing evidence of authenticity for the benefit of other parties and to bodies such as the courts or
HM Land Registry
• cautionary: requiring the maker to give due thought to the transaction prior to entering into it
• labelling: ensuring that it is clear to third parties what type of document it is and therefore what
the effects of it are
The formalities:
• in writing: the document must be in writing and cannot be made verbally.
• face value: it must be clear from the face of the document that it is a deed by the person making it
or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself
to be executed or signed as a deed or otherwise)
• execution: it must be executed correctly according to various statutory requirements
• delivery: the deed must be delivered
Formalities (1): in writing:
Goddard's Case (1584) 2 Co Rep 4b, 3 Leon 100 established that deeds must be in writing and
cannot be made orally.
The additional requirements established in that case for the deed to be written on paper or
parchment or vellum and not on any other substance, including wood, stone, slate, linen, cloth,
leather or steel were abolished by the Law of Property (Miscellaneous Provisions) Act 1989
(LP(MP)A 1989).
, Virtual execution:
Parties sometimes need to execute documents without all being physically present together. This is
sometimes known as ‘virtual signing’ or ‘virtual closing’. The Law Society has issued guidance on
virtual execution in England and Wales in response to the Mercury Tax case.
The Mercury Tax case considered the effectiveness of pre-signed signature pages. In that case
participants in a tax avoidance scheme signed signature pages in draft deeds which were then
detached and attached to final, substantially different versions of those documents. HMRC’s
challenge to the validity of those deeds was upheld by Underhill J who held that the parties must be
taken to have regarded signature as an essential element in the effectiveness of the documents. The
common understanding was that the document to be signed exists as a discrete physical entity
(whether in a single version or in a series of counterparts) at the moment of signing.
In its guidance, the Law Society suggests that the Mercury Tax decision is limited to its facts. This has
been questioned in Bioconstruct GmbH v Winspear where the Mercury Tax case was held to have
potentially broader application. The judge in Bioconstruct GmbH v Winspear did not find anything in
Underhill J’s analysis in the Mercury Tax case to indicate that it was influenced by that case arising in
the context of a tax avoidance scheme and that, further, there was no basis on which to so restrict
that analysis. It was presumed, in the absence of evidence to the contrary, that the parties must be
taken to have regarded signature of the same physical document as being essential to its
effectiveness. A deed may be executed by virtual means following the Law Society’s guidance under
Option 1—email of document and signed signature pages. However, particular caution is required
where a witness to a signature is required for valid execution.
Execution of deed using electronic signatures:
The Law Commission has confirmed that electronic signatures are valid under current law. On the
basis of this, the general attitude of the courts towards electronic signatures and the Law Society’s e-
Signature Practice Note, it seems theoretically possible that a deed could be validly executed
electronically. However, difficulties may be encountered in meeting several of the formalities.
The Law Commission, in its 2019 report on electronic execution of documents, considers that the
main challenge to electronic execution of deeds may be where the deed must be signed in the
presence of a witness who attests the signature. It has also been suggested in Man Ching Yuen v
Landy Chet Kin Wong, First-tier Tribunal (Property Chamber), 2020 (ref 2016/1089) (not reported
by LexisNexis®) that remote witnessing may not be sufficient for valid execution of a deed.
Formalities (2): face value:
It must be clear from the face of the document that it is intended to be a deed.
There is no prescribed way of meeting this requirement. LP(MP)A 1989 provides that it can be met
by a document describing itself as a deed or expressing itself to be executed or signed as a deed, or
otherwise. It is no longer sufficient for a document to simply be executed under seal.
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