I had an interesting email from one of my Landlord Law members recently regarding signature of documents. She had two questions.
Is it all right for guarantors to sign the guarantee deed and then scan and email it back?- Tenants want to have tenancy agreements emailed to them wherever they are so they can also sign, scan and return. Can they do this so you have say four separate scanned copies of their signature or do they all have to sign the same physical form?
To help me answer this question I dug out the Law Society’s Execution of Documents book (2008 edition), a deeply boring volume which, like the muggle repelling charms on the World Quiddich site in Harry Potter and the Goblet of Fire, had the effect of making me want to rush off and do something else. Immediately.
However from what I was able to discover before my eyes glazed over completely, there is such a thing as electronic signature but it does not appear to be just signing and scanning a form and emailing it back.
Mind you, I did have a case quite a few years ago, when a landlord living in the Caribbean who just had a faxed copy of the tenancy, was able to get this stamped (this was in the days when tenancy agreements had to be stamped), the original signed version not being available. (She needed a stamped version to use in her possession proceedings claim.) So non original documents are sometimes given official recognition.
My feeling is that if the question ever arose in a court hearing, the Judge might be minded to accept a scanned copy of a signature as evidence of the guarantor or tenant’s intention to be bound by a contract (whether this is a guarantee or a tenancy).
However there might be problems if the situation required signature of the document as a deed. Unless he were willing to accept sight of a copy as proof that the original existed.
I also think that where there are joint tenants they all need to sign the same document. A sheaf of separate electronic pages all with just one signature is not going to be good enough (although it may be proof of an intention to be bound by the terms of a tenancy).
However the need for original signatures on the same documents can cause problems where not all the tenants are available in one place to sign the form before the start of the tenancy.
What does anyone else think?
We’ve been using electronic agreements for all our tenancy agreements, and from what we do know provided the agreement-type is not a Deed and/ not for a duration of 3yrs+, then e-Agreements are acceptable.
Fyi, go to: http://www.echosign.com and or search online for BT EchoSign (BT are the UK reseller) – brilliant cloud software for all setting up and sending out all your Electronic Agreements; EchoSign also monitors the timeline and history of all events involving the eagreement such as when its was opened/viewed by any person, and has an authentice time-stamp system so that, everyone will know the difference between the authentic version and one that may’ve been tampered.
Interesting. I have not seen this service before. Has anyone else used it, and have the contracts been used in court proceedings? If so, what view did the Judge take of them?
I have seen Echo Sign before, used by a personal injury solicitor. Court proceedings were not involved.
I seem to remember a case about 1-2 years ago discussing emails in a similar way and whether having the “standard” signature was a signature (I think they held not, as it was totally automated). They want some indication of intention, some physical act to show acceptance.
On the issue of not all the tenants being in the right place at the right time (a common student problem), one trick we use is to get them to use an agent, in the same way as the landlord uses the agent, to sign the agreements.
@David That may be a solution but I have to say it fills me with unease. Have you tested this in court? What does anyone else think?
I was recently looking at 3rd party services for signing documents. The important thing to understand when looking at these types of services (Echosign etc) is that Digital Signatures and Elctronic Signatures are not the same thing. The former uses a secure cryptographic code that identifies you, whereas the latter uses an actual image of your proper signature, in say jpeg format. Echosign provides electronic signatures
The US is way ahead of us on this has legally ratified digital and electronic signatures (Electronic Signature in Global and National Commerce Act (ESIGN), and Digital Signature And Electronic Authentication Law (SEAL)). We have the Electonic Communications Act 2000 in the UK but it’s a bit shallow. There are also some EU directives endorsing the use of digital signatures. This is quite interesting reading relating to scanned signatures from the Law Society:
http://www.lawsociety.org.uk/productsandservices/practicenotes/executionofdocs/4447.article#eod3_1
If it were standard AST agreements I would use digital signatures, but we mainly issue deeds and we are going to contuine getting them signed and witnessed old school by hand until the law is clarified.
Hmm.
Call me old fashioned, but I am afraid my recommendation is for proper signatures on physical tenancy agreement forms. Until the whole question of electronic signatures for legal documents is clarified.
The County Court’s Civil Procedure Rules (CPRs) has a specific section on serving documents by what they call “Other Electronic Means” which is considered effectively served the second day after transmission.
I once served a notice on an agent by fax, which they tried to argue had not been served because of the method of service but the judge held that consideration had to be made for modern technology (Lewisham v. Ranaweera) I lost the case but not on the basis of service of documents.
If anyone is interested, signable.co.uk offer a similar service.
I just had a lease agreement sent to me through a similar service called Rightsignature (https://rightsignature.com/). I traced my signature onto the document using my mouse. It seems that this would hold up a little better in court compared to a typed signature and having researched the legality it all seems valid. Their site mentions a court admissable audit log. Worth checking out if you’re still interested.
Commercial agreements often contain a ‘counterparts’ clause, along the lines of ‘this agreement may be executed in any number of counterparts which, taken together, constitute one and the same document.’ It’s very common, especially when various parties are signing the agreement and posting it to each other.
I’d say that if the agreement contained that clause, it would be legitimate for each tenant to sign a copy and scan and email it back to the agent. The landlord could then sign each counterpart (if he hadn’t already done so) and scan and send the complete bundle back to the tenants.
I’d say a court would normally be happy with an emailed scan of a signature, particularly if you could prove it came from the relevant party’s own email account. But there’s always the possibility that the party will say their account was hacked and that the signature is not genuine, particularly if it’s a Gmail or Hotmail account rather than a corporate account. It’s a small risk – but it’s for this reason that I’d suggest the agent should ask people to post the originals back immediately after scanning and emailing a copy. That way, you have an electronic copy that will probably be enforceable, and soon after that you get a paper copy that you *know* is enforceable.
I can’t think of any reason why the ‘counterparts’ clause shouldn’t be effective for a contract affecting land (particularly if it’s not a deed) – but on the normal principles of offer and acceptance, I’d have thought it would be fine.
@RL Many thanks, that is very interesting. Not being a commercial property lawyer I was not aware of that.
What do other lawyers think about the use of this for residential tenancies?
Just to be clear – my expertise isn’t in commercial property, and I have no idea whether this is common in commercial leases. I meant commercial contracts more generally.
I think my comments above still hold good, though!
Just saw this legislation in favour of electronic signatures:
The UK has adopted and implemented certain provisions of the EU’s Electronic Commerce Directive in the Electronic Communications Act 2000, which makes e-signatures legally admissible in the UK. The Consumer Credit Act of 1974 was amended in 2004 to further facilitate the electronic signing of credit agreements.
Section 7 of the Electronic Communications Act states that in any legal proceedings, an electronic signature incorporated into or logically associated with a particular electronic communication shall be admissible into evidence in relation to questions as to the authenticity or integrity of the communication or data.
Like the US E-Signature Act, the specific electronic signature technology is not defined by the Act or the Regulations themselves. Best practices should include an acknowledgement by parties that they are affirmatively agreeing to sign by an electronic signature. EchoSign automatically includes such an acknowledgment in every transaction.
Source: http://www.echosign.com/static/AboutE-Signatures.pdf
Thanks Phil thats really helpful.
I think I will have to sit down with a wet towell wrapped around my head (when I get a moment and can find a towell) and do a new post in the light of everyone’s comments.
So if anyone else is reading this and has any ideas, please post a comment and I will consider it when I write the article.
Which may not be for a while however, as I have an audiobook to launch …
Having read the above I use a simpler method which while being less techie is a method I employ to deal with the original querry and has hopefully worked OK for me.
I send out a pdf copy of the tenancy agreement to each tenant and guarantor, the guarantors receive their separate guarantor agreement and each then needs to return the separate copy. The contract has a counterparts clause so I can assemble the contract and I have a complete agreement. The only issue is it takes as long as 1st class post takes, but I have original signatures (checked by driving licence or passport signatures)