Electronic Signatures – are they legal?
By Sarah Pacchiano – Registered Conveyancer
We are past the days where all documents and forms must be signed by handwritten signature. We are becoming a paperless environment and in doing so, we have adopted E-Sign as a method of signing documents with our clients. We do appreciate that at times our clients prefer to see us to physically to sign documents and we always prefer to meet our clients face to face. We quite enjoy this part of our role in the industry as it allows us to connect and engage with our clients in different ways than just a phone call does.
However, there are many documents and forms that can now be signed via online signature. This assists many of our clients who live interstate, who are unable to travel to our office, who have an urgent matter and are unable to rely via post, and even clients who are just time poor.
Whilst there are many documents that can be signed electronically which are legal binding under the Electronic Transactions Act (SA) 2000 (“the Act”), there are still documents that do require a hand written “wet” signature. Such documents include the execution of any document under ss 127(1) or (3) of the Corporations Act 2001 (Cth), the execution of Deeds, documents required for lodgement at the Lands Titles Office, Powers of Attorney, Wills, Mortgage documents and where ever the registration requirements for a particular document state that it requires only wet ink on paper.
When obtaining a signature via e-sign, the entire process can seem to be a grey area in the industry as the signatures are confirmed and considered to be valid at law under the Act but without the confirmation of the identity of the person signing at the other end.
We follow three important steps when considering E-Sign:
- We ensure we are provided with a separate email address for each client required to sign the document. This is a way of our clients identifying themselves as the person responsible for checking the email provided.
- Best practice and a requirement under the Act is to ensure E-Sign is used and performed appropriately. In order to do so, all parties signing a document electronically must give consent to and agree to the transmission of documents early on, and have also consented to and agreed to sign documents electronically. We include this in our Terms and Conditions that are signed at the beginning of the Conveyancing process as well as allowing the client to nominate the email in which they will be using.
- The use of a reliable and appropriate method of E-Sign is important such as Docusign or Adobe Sign. This way, we have a record of who, and which email, the document has been sent to. This also records the time and date of all communication and signatures. Once signed by each party, from each individual email account, we are able to receive the document instantly at the time it is signed electronically. At this time, details of communication and signatures are all recorded and stored for our records.
We expect that E-signing will become more and more popular in the future as the industry grows and changes. While E-signing is sometimes the preferred method, we will always take the time to understand each clients needs and do our best to accommodate their desires when it comes to methods of service and signing as we understand that each transaction and client is different. To avoid doubt and confusion, we like to establish the type of method our clients wish to use for signing documents at the beginning of the process and ensure we obtain their written consent to do so.