ID Requirements for Donors Acting by an Attorney

When a conveyancing transaction is conducted by an attorney, the conveyancer will represent the attorney but, generally, not the donor of the power of attorney, who will typically be unrepresented.

ID Requirements for Land Registry Applications

Under rule 17 of the Land Registration Rules 2003 HMLR are entitled to ask for evidence that the parties to a transaction have bee identified. They will always require it for the following applications:

·       Transfer;

·       Assent;

·       Charge;

·       Discharge;

·       Grant of a lease;

·       Surrender of a lease;

·       Change of name (other than as a result of marriage);

Where an attorney is acting on behalf of any party both the attorney and the donor are parties and need to be identified, as confirmed in the table at section 4 of Land Registry Practice Guide 67.

Evidence of Identity for Donors and Attorneys

As mentioned above, the attorney will be represented by a conveyancer (if a conveyancer is instructed at all) and so on the application for registration the conveyancer will be listed which will satisfy rule 17. Assuming the donor is not represented however, either the applicant’s conveyancer will need to confirm that satisfactory steps have been taken to identify them or else an ID1 will be required (if that is possible, see “the not practicable exception” below).

Conveyancer confirmation that satisfactory steps have been taken to identify the donor

This can be problematic in practice. At first, one may think that simply carrying out the usual ID checks which would be carried out on a client would be enough to, and indeed some conveyancers may take that view, however client due diligence is about more than just the initial ID checks. It is a continual process throughout the transaction and even where a person has passed a biometric and cryptographic ID check, an experienced conveyancer may spot the signs of a fraudster as the matter goes on.

“Satisfactory steps” is subjective, and what may seem sufficient at the time may not be with the benefit of hindsight, so making such a statement for a client they do not represent can be risky and unwise for a conveyancer.

Form ID1 / ID2

If a party is unrepresented and a conveyancer cannot confirm satisfactory steps have been taken to identify them, an ID1 (for individuals) or an ID2 (for companies) should be obtained where possible. This involves a conveyancer of CILEX Fellow meeting with the party, either in person or via video call, checking their ID and completing and signing either part B of the ID1 / ID2 (in person) or form ID5 (via video call) to confirm they have done so.

The “not practicable” exception

It might not be possible for an ID1 or ID2 to be provided or to carry out ID checks. Mere inconvenience, even if it is very inconvenient, is not enough to qualify for exemption from the rule 17 requirements, however. In truth, the exception will likely only apply where the donor has lost mental capacity and is unable to confirm their identity. In that case, HMLR say that they will require evidence of the lack of capacity and give a letter for a medical doctor as an example of what might be acceptable, though no definitive list is provided and any evidence will be considered on its merits.

It can be difficult to obtain a letter form a doctor. Where the donor has been referred to specialist consultant, their GP may be reluctant to comment (and it can take some considerable time to obtain an opinion letter from the consultant). Also, their capacity may be borderline, so that it is difficult to say what they can and cannot understand.

A letter from a solicitor would likely suffice, but most conveyancers would lack the necessary experience to make a judgement, so that a meeting with a solicitor specialising in dealing with elderly and vulnerable clients, such as those that are part of the “Solicitors for the Elderly” group should be considered.