Electronic Signatures: Valuable Information for Estate Agents

If you are an estate agent, you may wonder whether you can electronically sign an Offer to Purchase of immovable property. The answer is not a simple yes or no, as it depends on the legislation governing the process. This blog post will provide valuable information on the regulations you need to know before using electronic signatures.

CAN ONE SIGN AN OFFER TO PURCHASE OF IMMOVABLE PROPERTY ELECTRONICALLY?

First, it’s essential to understand that the prevailing legislation dealing with the signature of agreements for the sale of immovable property is the Alienation of Land Act 68 of 1981. However, this Act came into force before the digital age and only envisaged a wet ink signature on an Offer to Purchase.

WHAT IS AN ELECTRONIC SIGNATURE?

So, what is an electronic signature? An electronic signature is used to identify a person’s identity and constitutes proof of consent to the information contained in a document. The signature indicates a person’s intention to accept the document’s content or the collection of data linked to the signature.

THERE ARE CERTAIN TRANSACTIONS THAT MAY NOT BE SIGNED ELECTRONICALLY.

The Electronic Communications and Transactions Act, 2002 (ECTA) sets out categories of transactions that may not be signed electronically. The documents that cannot be signed electronically include an agreement of sale for immovable property, long-term leases of land exceeding 20 years, a signature on a will, and bills of exchange.

THE ECTA DOES NOT PROVIDE HOW A DIGITAL SIGNATURE CAN BE ACHIEVED.

Although the ECTA does not provide how a digital signature can be achieved, it could include drawing your finger using your signature on a touch screen device directly on the document, using the cursor of your mouse to draw the signature, uploading an image of your signature, or using your keyboard to type your signature.

WHEN WILL ELECTRONIC SIGNATURE BE BINDING?

So, when will an electronic signature be binding? An electronic signature will be valid and binding when a method is used to identify the person and to indicate the person’s approval of the information communicated and, having regard to all the necessary circumstances at the same time the method was used; the method was reliable and appropriate for the purpose for which the information was communicated.

TO SUMMARISE:

In conclusion, an Offer to Purchase must be written and signed by all the sellers and purchasers, and the signatures of such an agreement of sale may not be signed electronically. If any of the above requirements and other formalities are not complied with, it will cause the agreement of sale to be invalid and, therefore, not binding on the parties.

DO YOU HAVE AN ELECTRONIC SIGNATURE CLAUSE IN YOUR OTP?

As an estate agent, it’s crucial to incorporate this legislation in your Offer to Purchase for immovable property when selling a house. If you need any assistance in this regard, contact Madalane Peyper Incorporated. A key takeaway is that if used correctly, the ECTA paves a way to continue operating in uncertain times such as these.

Whatever your legal need is, we look forward to being part of a continued journey with you.