In these days, still being restricted by Covid, it would be very convenient and timely to accept documents relating to tenancies and other business contracts that have been signed electronically and transmitted electronically, rather than using the usual face-to-face signing and exchange using pen and ink.
But just how legal are these e-signatures on a document, and more importantly how would electronic signatures stand-up in court? Would you be prepared to accept a tenancy agreement attached to an email with an electronic (typed) signature on it?
This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.
Yes, says the law, electronic signatures are perfectly legal because today we have something called the Electronic Communications Act 2000 (and eIDAS in the European Union, NIST-DSS in the USA or ZertES in Switzerland)., all of which clarify the situation somewhat.
Even so, many people would still be quite apprehensive about accepting documents signed in this way, especially if they are from the older generation – the younger generations of course are far more accepting of new technology and instant communications via email and text.
It is the case however, that some documents need a signature and witness, so physical signing and witnessing is necessary, for example for documents signed as a deed involving leases of longer than 3 years, and property titles etc.
To quote directly from the EC Act: Electronic signatures and related certificates.
(1) In any legal proceedings—
(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data, and
(b) the certification by any person of such a signature, shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.
(2) For the purposes of this section an electronic signature is so much of anything in electronic form as—
(a) is incorporated into or otherwise logically associated with any electronic communication or electronic data; and
(b) purports to be used by the individual creating it to sign.
(3) For the purposes of this section an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person (whether before or after the making of the communication) has made a statement confirming that—
(a) the signature,
(b) a means of producing, communicating or verifying the signature, or
(c) a procedure applied to the signature, is (either alone or in combination with other factors) a valid means of signing.
Quite clearly the electronic signature has legal standing providing certain other requirements are met, in particular that a confirmation statement is made, the parties are identified and the document is date-stamped, which it would be in any case if accompanied by an e-mail audit trail as evidence of receipt.
Ironically, the accommodating audit trail could give more certainty to the signature and the intentions of the parties than would a traditional pen and ink signature. That’s because a tenants can and sometimes have done in court, denied they have signed a document. Faced with this, unless other supporting evidence is available, such as a witness statement, any judge would err on the side of caution and take the tenant’s word.
Although there are third party signature services such as those offered by Adobe, which act as a sort of independent escrow service, this is not necessary for one offs, and it would be usual for landlords to send documents attached to an email on which the tenant/s can either upload a facsimile signature, or simply type one.
The key to all this is that common sense is required. So long as the process used generates a clear audit trail showing the intentions of the parties, based on the electronic communications between them leading up to the agreement signing, and that dates are clearly stated – it’s advisable to type out a date in full so that, even thought the email is electronically dated, the date on the documents cannot be doctored. For example, instead of 19/06/20 write The 19th of June, 2020
The exception to all of this as stated above, is where a document needs a witness. For example, tenancies of more than three years and guarantor agreements must be prepared and signed as a deed with a witness statement and signature. Witness statements therefore cannot be signed electronically.