The landowner-mortgagor's lawyer or conveyancer often certifies a new mortgage on behalf of the mortgagee as well as the mortgagor, or a discharge of an existing mortgage on behalf of the mortgagee.
This is fine providing the certifying lawyer or conveyancer has been properly instructed by the mortgagee, and holds evidence of that.
It is not sufficient for the mortgagor's lawyer or conveyancer to rely on instructions from the mortgagee's solicitor unless that solicitor is acting as an authorised signatory or under a written authority such as a power of attorney that includes specific power to issue such instructions on the mortgagee's behalf.
Before certifying a new electronic mortgage or an electronic discharge on behalf of the mortgagee, a lawyer or conveyancer must ensure he or she holds the authority and instruction to do so, from:
- The mortgagee directly (e.g. using the private individual or corporate Authority and Instructions (A&I) forms, or an institutional mortgagee's discharge instrument or instruction letter as suggested in Guidelines Q and R of the PLS Guidelines, or
- An authorised signatory (in terms of section 180 of the Companies Act 1993) or a person with written authority or power of attorney from the mortgagee giving them power to issue mortgage instructions on the mortgagee's behalf.
If the mortgagee chooses not to instruct the landowner-mortgagor's lawyer or conveyancer, then the mortgagee's own lawyer or conveyancer can certify on behalf of the mortgagee in a multi-party e-dealing.