Unlock the Power of Electronic Signature Lawfulness for Real Estate in Mexico

How to eSign a document: electronic signature lawfulness for Real Estate in Mexico

[Applause] [Music] all right so I think we can get started um so I'm going to first just have you guys introduce yourself so for everyone here the topic of today is we're going to look at the legal ground of electronic signatures and uh in relation to the real estate industry and as I think we all know uh there's a bit of a debate on is uh you know our electronic signatures valid um a lot of people have started doing them more and more I myself I'm one of them and a lot of us haven't considered the fact that we need to maybe just check in if this is is something that can you know hold up in court and if it can't what are the steps that we need to take so first we're going to learn a little bit about the law learn about U maybe a case or two and uh and take it from there so I think just to get started um David if you would please just maybe introduce yourself to the audience yeah perfect well firstly let me start by saying thanks for hosting this and to Courtney and Janet thanks for organizing um so my name is David Campbell I'm a director at M white attorneys which is a leading property law firm in kzm um I'm an admitted attorney notary and conveyancer so I specialize in conveyancing developments and general property related matters so we look at not only you know receiving the sale agreement doing the transfer but we also look at when things go wrong which is what we can go into with regards to today's talk so yeah that's just my background and again thanks for having me thank you so much and then um Jan I'm sure the audience are familiar with you and also with Cony but I think we still need to do our proper introduction so Jan I'm going to start with you hi everybody thank you so much for being here um my name is Janet Alexander as you may know and um I'm with prop Academy and um we're quite excited to bring you this topic it's um it's quite a difficult one to wrap your brain around um and there's a lot of legalities that Dave is going to explain to us in the electronics act um and highlight those um yeah that's it from me thanks J and Courtney just quickly on your side as well hi everybody I'm Courtney from prop Academy I know a lot of the people in the chat room so I'm so happy that you joined us if you've missed and you've just joined now and prop Academy is an online training provider for the real estate sector and um please get your notepads out because this is going to be very interesting I'm very excited to hear what David has to say absolutely all right so I think let's get started so um David as we discussed and prepared the first area we're going to discuss or that you're going to Enlighten us with is looking at the legal requirements for a valid sale agreement so the first question we can perhaps look at or the first topic is what makes a property sale agreement officially valid ing to the law and U does the law treat all types of property the same when it comes to stingly so maybe we can unpack this first okay perfect so with regards to the fth part of the question when you're looking at the legal requirements for a valid sale agreement your starting point is going to be the alienation of Land Act which is 68 of 1981 so the alienation of Land Act prescribes certain formalities which have to be complied with in order for a contract of in relation to IM movable property to be valid in terms of that act there's actually only two requirements and this is something not a lot of people realize is that for the contract of sale for removable property the only two legal requirements is that it needs to be contained in a deed of alienation so that is your traditional sale agreement so you know you've got a piece of paper it's got a property description on it it's got the parties and it's got a purchase price and how it's to be paid so that's your fin in documents and that's the first document that's required your deed of alienation moving on from that the second requirement is that the deed of alienation or sale agreement needs to be signed by both of the parties there too or all of the parties there too or it can be signed on their behalf by their agents who are acting on a written Authority so I mean any agent will know you're often dealing with a third party who has a power of attorney so that person is an agent acting on behalf of another person and they have the legal standing to sign a sale agreement but that is obviously where today's discussion stems from the second requirement which is it needs to be signed by both of the parties or all of the parties there too the second part of that question is where it gets a bit more interesting I would say because you know when we're thinking about a contract of sale or sale agreement for removable property traditionally we are thinking of okay you've got a residential property sectional title property and one party is selling it to another and that is correct but it goes beyond that because what you're also looking at is what about sale of shares in a property owning entity so that's where you also have to comply with the alienation of land act because even though you might be selling the you can't form a new CC now but traditionally a lot of people have liked to own property in a closed Corporation and instead of now the property out of the closed Corporation so that's situation where the parties to the contract would be the closed Corporation as the owner of the property and the purchaser buying the property from the closed Corporation what you could be looking at is the purchaser buying the shares or members interest in the closed corporation that then owns the underlying property now that is also a contract of sale as defined in the alienation of land act so if you're dealing with a the sale of share in a property owning entity you still have to go back to look at okay what are the legal requirements so it still needs to be contained in a deed of alienation and it still needs to be signed by both of the parties or all of the parties there too all right and um I've heard something about the changes in paying taxes when buying property shares can you maybe explain what's new there yeah so it's actually quite interesting because it's not a new topic and it's the same with the electronic sign atures it's not you know this new topic it's just something that's getting more sort of information put out there and more people becoming aware of it so traditionally when you were buying shares in a property owning company there was no transfer Duty that attached to that transfer so that was why it was a very popular option to utilize so I own a property and a cc instead of selling the property out of the CC and my purchase or pay and transfer Duty on the value of the property here all I was doing is I was transferring the members interest it's not a transaction that goes to the Deeds office and so traditionally it wasn't then attracting transfer Duty on the fair market value of the property that situation has changed I mean it actually changed in 2002 to be honest and what it now States is that where it's a residential property that's owned by the company transfer Duty does actually get attracted onto the fair market value of the shares so it's not the property value of the property although if it's a cc that's only owning one residential property it's one in the same thing but obviously so if you have a cc where its asset base comprises 50% or more of residential property and you're selling the shares in that then it's going to attract um transfer Duty on the value of the shares so it was closing a loophole a lot of people were just using it transferring residential property owning it in a company transferring to a purchaser and thereby not attrac in transfer Duty whereas now they're saying if it's residential property you you can you don't have that benefit anymore you are now going to pay transfer Duty as if it is a standard transfer all right that makes sense okay so next we can maybe look at how uh a sale agreement is signed um and maybe we can explore um why are more people using electronic signatures for property deals these days obviously it has a lot to do with the new digital age but it is coming up more and more um what is your take on that okay so I I think we just need to look at the people who are sitting in on this meeting to to see why it would be increasingly common to utilize electronic signatures I mean we have people sitting all over South Africa and we may as well be in the same room so you know again traditionally you as an estate agent or property practitioner would be having to sit down with your purchaser and seller you would be producing a written word document and the part would sit and sign it with you and that would be your sale agreement so just a quick term that is good to Define at the outset of this when we're looking at signatures when I look at electronic signatures it's I find it better to Define it as in contrast to what it isn't and what it isn't is your traditional wet ink signature a wet ink signature is where I've got a pen in hand and I am signing with wet ink if it's not that then we're looking at electronic signatures which then take many form and we can touch on but again so we are now in an age where people are traveling people have access to technology people are it's a fuss paced environment that we working in so we have a situation where our seller is sitting in joerg he's about to get on a plane to go overseas the property's in Durban the agent and the purchaser are in Durban the purchasers signed and there's a period of time for the seller to accept the offer now what you would traditionally expect is okay so you're going to email this contract you're going to scan it once it's signed by the purchaser you're going to email it and send it to your seller your seller is then expected on the other end to find a printer to print it to then counter sign initial of the document sign where it needs to be signed and then scan it and send it back and only once all of that has happened do you actually have a valid sale agreement so you can see why there's this increasing need for people to say well okay you get it signed you're going to send it to me I've got the technology here to attach a signature to this without having to get a printer without having to then find a scanner to send it back and I find quite often to be honest is that it's not the printer that's the problem it's a scanner you know it's just that's of people are like okay I can print this but I don't have the ability to scan it so you'll get it when I come back from my leave or so you can see why there's this you know it it makes a lot more sense to be able to just attach the signature without going through it there's also I mean look I'm a cynic but I think there's also the environmental components just for example you know I'm a sitting in Hill Crest we do a lot of work with particular Estates here and add to print documents other down it's about a 50 page sale agreement with everything attached so you know to print 50 pages then sign it and send it back there's an environmental component to it and I think people do feel quite good about themselves when they can you know get around that so so it's not only more efficient but it's also environmentally friendly to be able to utilize electronic signatures yeah and I think there might be even a general assumption that it has become okay because of the digital age that's progressed but in terms of the law it there there are obviously still sub rules that needs to be followed but I think there's a perception of people thinking ah it's fine you know everyone's doing it I might as well start doing it so 100% so so it's convenient and then there is the perception that there's not an issue and where the perception comes from so we in South Africa have what referred to as the electronic Communications transaction act um and that is the act that governs and provides the legal framework in which electronic signatures exist and one of the founding sort of statements or founding paragraphs of the ACT is that it a signature isn't going to be invalid just by virtue of being an electronic format so it's really saying it's setting this groundwork of saying that by virtue of being electronic isn't going to immediately invalidate a contract because it was signed like that what people don't do is they don't go further and then look at the ACT where there's a specific provision that says well that's all good and well but there are exceptions where an electronic signature is going to invalidate an act and again that's where we get on to today's topic because once you read the ACT properly and you look at the exceptions you then see that there are problems when it comes to a deed of alienation or sale agreement in respect of a movable property well that actually does lead me to the next question which is um if you can kind of straightforward just give us some info on if there are any property deals where you can't use an electronic signature at all okay so if you look at schedule two of that act it's literally the very last page and on that page it specifically says that a sale agreement in respect of immovable property cannot be signed electronically it will be invalid and the other one that's relevant to today's topic is a lease so long-term lease where it exceeds 20 years so those two I mean it's there's no confusion there's no debate around it it's it's a provision in legislation that isn't in any way ambiguous it specifically says that these are the contracts that cannot be signed electronically and it is those two sale agreements in respect of removable property and a long-term lease and we've already said a sale agreement in respect of a movable property isn't just your traditional sale agreement it's also sale of shares and a property owning entity it goes beyond so yeah and we can we will look at why there's confusion but I mean the legislation is very clear on on the topic and so when Janet actually first asked me about this I thought flip well the talk can be three minutes and we'll be done but you know there's there's more to discuss around it yes so absolutely and I think um basically I'm sure that there are people who aren't following this this rule I'm assuming because I think even for me I've been in situation when I where I've signed contracts and I've questioned you know shouldn't I have put this on wet ink it sounds like it should have been but then H we move on and because nothing's happened because there's no case or or investigation that's that's likely to take place but maybe that can can lead to the next uh point where maybe we can discuss a court case um I think when we prepared you mentioned that there's a court case uh where the usage of electronic signatures were uh addressed um perhaps you can elaborate a little bit on that example yeah so we'll go to the the case but just something else to raise like you said with the confusion I mean our role as conveyances is to we get a sale agreement and there's a legal obligation on a conveyancer to make sure that all the documents are in order and you sign a conveyances certificate on every document you send into the Deeds office and that conance certificate is essentially saying that myself David Campbell I've checked the documents I'm satisfied that all is in order and that this transfer can proceed so when I get a sale agreement one of the first things I'm looking at is how is it signed am I comfortable that because remember the sale agreement is always going to be the founding document it's the underlying documents on which all transfers or transactions are then based so if that is invalid the whole deal is invalid and if problems arise a lot of these things it goes ahead no one makes an issue of it and there's not a problem I mean that's that's what would happen in 99% of cases where the problems going to have or where issues are going to arise is where one of the parties subsequently says no well the sale agreement was invalid um I want this overturned or the transfer to be yeah um overturned and that's where the issues arise so 99.99% of times there's never going to be an issue you have a willing buyer a willing seller and the thing proceeds smoothly is where there's an issue and that's why the conveyances need to check and we have situations where say we doing a bond and a conveyancer sends us the sale agreement as they have have to and we check on behalf of the bank to make sure because the bank needs to know that the underlying security being the sale agreement on which the transfer is based is actually valid and we've said to other conces this isn't valid your sale agreement needs to be redone and they've argued with us and we say well here's the legislation please go and read it and you know we don't hear from them back until we receive a correct sale agreement so it's widespread even amongst the legal fraternity this this sort of um gray area with regards to case law so there is a case that I think a lot of people when you Google this you see this case and it's borad vers Duxbury um so b o r c h e r DS vers dxb Y what is interesting here is that is a single judge sitting in the Eastern Cape High Court who received there was a case going on in terms of which the seller had signed a sale agreement using that program called doc youde now anyone who signs anything electronically I mean that's pretty much the leading software it's it's very secure it's there's no issue I mean if I'm signing if you're signing something your financial advisor sends you or you know that's the program you're using and you can confidently use it knowing that the data that's getting attached to the sale agreement is your signature and that's what an electronic signature really is it's data that's you know being put forth as your signature that you've accepted so in that case you had a judge who saw the sale agreement and saw it had been signed by docan um when making his decision the judge got it really wrong and that he looked at what is the intention of the parties the intention of the seller in fixing his signature using docy sign was to sell the property the purchaser's intention when he signed was to purchase the property and so it goes back to your traditional contract law in terms of which you have a valid contract when there's offer an acceptance by the two parties so the judge didn't look much further than that he said okay we've got a situation there's no dispute that the sale agreement was signed by the seller the seller is not saying he didn't sign it or accept it the seller is saying he signed using docy sign purchases saying I sound with wet ink I it was my offer and there was an acceptance judge said well okay um looking at the general framework of the electronic communications transaction act uh electronic signatures are recognized in South Africa IPO facto this is a valid sale agreement and the judge found in favor that it was a valid agreement and allowed it the judge didn't actually look at the legislation and see that okay well it's the legislation yes allows for electronic signatures but not in respect of certain contracts the judge didn't take the next step of looking at what was in schedule 2 and what forms of contract wouldn't be valid so we sitting with a thing where there's a one case in the Eastern Cape high court with one judge sitting who found it to be valid now because it was in the Eastern Cape high court it's not binding in any other jurisdictions so in K it in if you had that CA if you had the same situation you wouldn't be able to go to a judge and say there's been precedent that's been set you would say no there's no precedent there is this case but they got it wrong here's why and the judge would consider that but wouldn't be bound to follow that rule in again if you then went to the Eastern Cape and you had the same case what you would say is that okay well there is this but if we've got a matter where there's three judges who are priding or if we take that on appeal so the judge has to consider it the judge finds it you then automatically appeal it to three judges and the three judges would then overrule it so again there's this case that's floating around that the underlying contract or legal contract principles are correct offer an acceptance great it just didn't look at the legislation and a judge isn't entitled to interpret legislation where it's you know so clearly defined the judge isn't making legislation the judge is following legislation and here there's absolutely no question about what the legislation says so it was just a PO judgment that we now that now exists and floats around and again so when people Google as they do that's one of the first things they see absolutely and that's what people going to base their perceptions on as well exactly yeah um I quickly want to address the audience again so I've seen a few um people well two people raise hands remember we're not going to take um mic uh questions we're going to take written questions I've already seen one question comeing which will save for for the the second half of the session so just keep in mind if you have any questions please drop them on the chat we will address them all right um so next I want to address lease agreements especially those that are shorter than 20 years I'm looking at lease agreements of maybe one year two years five years um so the question here is can you cancel a lease or make a change to it by email um how does that work okay so that is a very good question in this context so I think to draw a line under a previous discussion sale agreement in respect of removable property signed in wet ink it's it's there's no debate around it we know what the legal position is that's what has to be done lease agreements for a property that are shorter than 20 years there is absolutely no issue with those being signed electronically um there's you know it's again it falls under you've got an acceptance provided that the lease is going to be met with all of the correct um legalities you've defined the property you defined the parties you've got your set rental amount it can be signed electronically where the an interesting situation that's Arisen and can arise with any contract but it happened with the lease so it's relevant to talk about is in a case called Spring Forest trading 599 CC vers wbury PTY limited so what was what happened there is you had a situation where parties had entered into a valid lease agreement it was signed wet income me it's not really relevant here but you had a wet ink signed lease agreement during the course of the lease you had one the an interaction between the parties over email and you know the one party wanted to cancel the lease so essentially sent an email saying can we cancel the lease and the party responded and said yes now the there was then a dispute as to whether that constituted a valid cancellation of a lease agreement so if we look at your standard lease agreement it contains a clause that says no variations cancellations blah blah blah will be valid unless reduced to writing and signed by both of the parties so any good sale agreement is going to have that Clause that's put into it um and that prevents the people from entering into verbal agreements it give certainty for everyone where this now brings in a new El of uncertainty is that okay we know if we are interacting over email that isn't writing so I send Courtney an email and I say Courtney are you prepared to cancel the lease I've now put it forward in right here at the bottom of that email it says Kinder guards David Campbell courney responds to that and says yes I have no issue with canceling the lease Kinder guards cordney McKenna in this situation in the case the judge said that amounts to a a valid cancellation of the sale agreement the signature at the bottom of your email is actually an electronic signature for the purpose of the electronic communications and transactions act so you had met the requirements it was in writing and signed by both of the parties and there was clearly an agreement that had been reached so the minute that the second email was sent that lease had been validly cancelled even though one of the parties subsequently tried to dispute it and the same thing goes the fact that it's over email is somewhat irrelevant it can be over WhatsApp where you saying um yeah I'm not happy with this late at night had a couple of beers not happy with this I want to cancel from David Courtney respond and says okay David I'm tired of dealing with you I don't want to message at 11 at night happy to accept your cancellation cter guards Courtney that has been signed the placing of the name at the bottom of that constitutes a signature and therefore it's incredibly important where you have a contract that's not a sale agreement in respect of removal property that allows for electronic communications and allows for electronic signatures to make sure that you are being careful with the correspondence that you're sending backwards and forwards absolutely yeah all right and um what's the best way to make sure emails um or or electronic signatures in this case are taken seriously in agreements because I think there's still even when you started talking my immediate perception was oh well emails aren't you know formal U well technically they are yeah the is to me is notable so I think yeah the question is what is the best way to make sure that your emails are actually taken seriously before it even get to the point where it's an issue look I think the most important thing is you're going back to the drafting of contracts so remember you've got legislation on the one hand and then you've got the provisions of the contract on the other now in terms of a contract you can't you know go contrary to law so you can't have a clause in a sale agreement for removable property that says electronic signatures are acceptable because you've got legislation that specifically says it isn't but where there's no legislation such as with a lease agreement so you've got a situation where lease agreement less than 20 years is now acceptable to have a electronic signature in that there's nothing stopping you from putting in a clause that essentially says that electonic signature will not be acceptable so you you can do you can contract out of it you can't take the legislation away and you know change it and go directly against it because you've included Clause but you can contract out of it in terms of in that situation we would say you have a clause in a lease agreement which essentially says no variation alteration or consensual termination may be given effect to by way of electronic data messaging minute you've got that those emails aren't going to be changing anything you're fine absolutely um all right and maybe we can just conclude before we get to the questions because we have quite a few um let's talk about the future so what is the signatures um in property deals will change soon you know are they are they going to start allowing it more and more um and uh how can people in real estate stay ahead of these changes look uh you know it's it's very much saming none of us can until the future but I I do see that this is going to change I think you know there's there's no real reason why and if you look at sort of the Articles from people a lot smarter than myself that have been done on electronic signatures they they are actually or can be more secure than a traditional wet ink signature I mean you just need to look at the legislation and there's it distinguishes between a simple electronic signature and an advanced electronic signature and I mean you actually there's certain contracts that and it's not worth sort of going into now it goes beyond the Ambit of the discussion but there's certain contracts that actually require what's an advanced electronic signature and in that situation you as a um consumer have actually got your electronic signature and it's been verified by an external source so there's certain um verification agencies that are appointed under the act that can verify that that's your signature and that I it's it's an incredibly secure um form of of signature so you know I don't see a change I don't see a changing R now um I think that there is still place for a traditional wet ink signature and I think if you look at the nature of the contracts that are excluded it's a movable property it's your long-term leases again more than 20 years it constitutes a movable property anyway and it's walls and then bows of exchange which we're not really signing chicks or but I mean your wall is is also it it shows you that it's lumping together walls and contracts of sale in respect of removable property and I think we know that in general Society those two documents in general speak your your purchase of removable property is probably going to be the biggest asset you ever purchase um you know in most people's lives and and again your will is an unbelievably important document to your average consumer so it's really at this stage you can only sort of look at what the legislation is and and interpret it as saying well these contracts really stand above um your standard day-to-day transactions that you're entering into and therefore we're going to play special importance and we actually want that wetting signature I don't think like I said practically going forward it's sure to change I mean it's almost certain and it's just a matter of amending schedule to to do away with those contracts and maybe it'll impose other obligations I'm sure that if they do they'll say it has to be this Advanced electronic signature and all of that but but again you know banks on are now getting clients in our office to come in and you sign electronically for your bond documents so but you still have to sign in front of a conveyancer or an attorney so you know they're saying yes there is grounds for this but they're imposing obligations so I just do just think that there is going to be a shift but it'll be interesting to see what form that takes and it will have to only be done once everyone's very comfortable with these electronic signatures absolutely and and consider the fact that we are still in a third world country where not a lot of people have technology and equipment to you know do the electronic signature thing so it might still be a while but um I think with technology growing faster they say that the last 10 years uh technology growth is going to be as short as three years now so it's interesting to see how how things might change I definitely think so remember I mean we our property industry and the way it's regulated we impose so many checks and balances that if you purchase a property overseas you really don't see so when when we are actually handling these transactions we're putting a lot of emphasis on protecting consumers and I think it's a very good thing so this is just should be seen as another element of that absolutely okay Dave we can maybe start with a questions I'm going to read them one by one if there is a question that's not relevant to our topic you could just just say we're going to skip that one for now if the question is a repeat obviously you'll know better than I do you're the expert here but if there's a repeat you can just say the question's already been um and also to the audience if Dave does address your question even though I'm reading someone else's just please take notes so that we can save time and and get make sure we get to everyone okay so I'm going to start with nusa who's asking David is it possible to tell us the act that talks about the conveyances certificate legislation okay so there you would be looking at the Deeds Registries act um which is really where what deals with documents being signed off by conveyances is looking at your so remember when you're talking about a um conveyances signature and the conveyance a certificate that is what we attach to a power of attorney to pass transfer and a deed of transfer and it's essentially the signature by the conveyance so that certifies that all is in order with the documents that they signing off on because those are what are going to the Deeds office so yeah it's the Deeds Registries act all right then we've got I don't have a name with this one U but someone's asking mandatory disclosures and annexures and addendums to the sale agreement also implicated in this yes so if you look at the legislation relating to your mandatory disclosure form in terms of the um that act the property practitioners um act it specifically says that your mandatory disclosure form forms a integral part of your sale agreement so it is a part of the sale agreement if you then look further and again of you 99 9% of a sale agree or sale agreements is going to have the nonv variation Clause that says you know any additions alterations amendments need to be reduced to writing and signed by the parties so again in order for it to be reduced to wri in we know what that is but signed by the parties we then bringing in the fact that it can't be electronically signed awesome all right then we've got a question from ingret um if a lease is 10 years with options 5 * 5 does the does this fall under act as long-term Le yes it does so when you're looking at a long-term lease you're looking at what is the original period as well as all extended periods so if all of those periods go over that it then becomes a long-term lease fantastic Richard is asking please tell us the legislation surrounding signatures thanks um I assume either Richard might have entered late or um unless there is an additional legislation here so so it's the electronic communications and transactions act 2002 and again what you looking at there just to stress I've got it here and it's it's strange where the um I just want to confirm the exact sections that say you can't rely on um signatures for sale agreements so if you would be looking at it's section four which is sphere of application red with um schedule two which is literally the very last page of the legislation so it is the last page a small section there that refers back to section 44 so yeah um you know not saying that a judge is excused for not seeing that but it is in a strange place all right easy to find at least go to the last page yeah I go to the very last page and there's a little square box that has those awesome okay Benny sheeper is asking leas is shorter than 20 years what level of electronic signatures are required basic okay so I think we did have this discussion earlier in the talk was about these are short than 20 years um yeah you can maybe just quickly address one just just to quickly address it and I think where that could be going is again in terms of that act there are certain contracts that require what this Advanced electronic signature a lease agreement shorter than 20 years isn't one of those all right so it's any just your standard electronic signature okay um Martin is asking an uh OTP sign in ink by the purchaser is scanned an email to the seller the seller signs it with an adobe signature typed initials is this a valid acceptance no seller has to actually print that document apply wet ink to it and scan and return it that's exactly what happened in that Eastern Cape case um it doesn't matter what program you're using the minute that you are not applying wet into that contract it's going to be void right okay rash is asking is WhatsApp communication valid it has become a norm for WhatsApp chats to share requests and decisions it is but remember you have to actually sign off on the message with your name so in that in that spring trading case the the relevant part of the Judgment it wasn't the email exchange it was the kind guards David Campbell at the bottom of that email agreement which is what the signature is um so you know I can just send a WhatsApp where I say again hi Courtney I haven't signed off on that as myself if I say hi Courtney kind guards David Campbell or regards David Campbell or just David Campbell then I'm attaching my signature to it right um Martin's asking another question and he's asking what constitutes as a valid electronic signature in terms of the ACT okay again it's very broadly defined um it's any data that attaches to anything that purports to be um some someone's signature so it's incredibly broad unless again it's going into advanced electronic signatures which is where you need to have that independent Authority having verified it and I would assume so something like docy sign that would amount to an advanced electronic signature the signatures they have there would have been verified by the independent body where you have paint or whatever the programmers people use now and you draw your signature look that is a signature it's I'm putting it there yes it's data being conveyed but it's been conveyed and reported to be my signature that I've accepted so provided that it's not specifying it needs to be a advanced electronic signature then that's fine all right um John is asking what methods of electronic signatures is acceptable on contracts intials and signatures that is typed out letters versus initials and signatures created on PDF full versus s I think that kind of again it Go the same thing it's any data that purports to be a signature so it's very Broad and then he also ask is everything discussed today valid for rentals and sales which I assume yes addes our least agreements and our property of sale all right Trevor can uh I think we did answer this can WhatsApp or emails be used to get consent from clients to Market as per requirements from the PPR see so it's quite an interesting one so I think there what if I'm not mistaken we're talking about mandates it seems like it yeah so my our specific approach is generally going to be that um you know ideally you would have a wet ink signature on a mandate only because it's so closely related to the eventual sale of the property that you know there's this link between them but in terms of legislation and a strict interpretation no it doesn't it can be electronically signed so again we we also always have to look between and it's like that Clause that I've suggested for a lease agreement where you are saying that you don't want um electronic signatures what is best case practice here so best case practice is I would want my mandate to be with we in but no legally it does not actually have to be it's only the sale agreement because that's what the legislation says is um giving us another interesting one when an email is sent but not received Where Do We Stand legally especially confirming notice to vacate okay so that does go somewhat beyond the Ambit of this you see it's up to other person so You' have to go back to the contract and that's looking at you know your essentially your domicile clause and with the service of documents under the email so if you have a sale agreement where someone's nominated what their um domicile is and they've nominated as an email and the contract would generally say that you know a a notice that's been sent via email is deemed to be received within four hours of it being sent again that is actually even if the person didn't receive it or didn't read it service has still been affected again sending stuff with via register post now how many people are actually getting those it's still deemed the valid and remember the important thing there is it's deemed to be valid it's not that it's deemed to have been received it's not that it has physically been received so if you go down to high court on any day and you sit and you watch the um foreclosure applications and Banks y obviously instag litigation and generally the judge can say well look I'm not comfortable this person received it even though they're allowed to send it via email so there's a bit of discretion there and we would always say get the sheriff to serve if you're dealing with a lease and you want to make sure that the person was validly terminated there's all of again it's good practice vers what does the actual sale contract say um and you know you don't want to leave yourself in the hands of a judge so ideally you can prove the service but you know if if if you've met the requirements then strictly speaking you've done what you needed to do the next one kind of addresses a topic that you and I discussed when we prepared um uh Martin says to his point Point um of an of a OTP signed electronically he says that what he also does is he takes a a scan well not a scan a picture of his signature his actual signature Adobe allows you to insert it into PDF and it really looks like it's your actual written signature and by the time you print it it's very difficult to tell the difference between the written one and the the electronic signature one so what he says is unless another attorney or Bank ask for the original no one will actually know and I think that addresses what you said there's going to be no issue until there's an issue there's an issue exactly so you know there's there's ways around these things all we can say is this is what the legal situation is if you are going to be doing something that looks completely valid it looks like a wetting signature I receive it as a conveyance I'm not questioning it I'm not asking for the original and remember in terms of sale of property you don't need the original sale agreement it's never called for um so you could get away with it where there would be a problem is again you need Witnesses so let's think about a situation where you've as a seller have done that you the purchaser now wants to get out of the deal and it goes to court purchaser says for whatever reason I've got a feeling you didn't sign this properly you know I can see this faint outline where you've stuck the whatever they just have a feeling you giving evidence under oath that it was validly signed as are your Witnesses potentially so yeah it's yes you can fool the system and if you confident to lie that's not a problem um well I mean it is a problem for you person but yeah you can get away with it like anything yeah uh the next one's interesting um they're asking if if a contract has a full signature on it with ink can the initials be digitally done no you need to actually make sure that it's actually yeah done what we think throughout okay ran is asking so you can contract out of certain provisions of the ECT act but not others yes correct it's like any legislation you can impose additional obligations or you can you can if but where legislation says you cannot do something so it specifically says you cannot sign a contract with wet with um an electronic signature you can't just decide that you're going to put in a clause that says we are going to be allowed to sign what you can do is where the ACT is silence so the ACT is silen on lease agreement shorter than 20 years therefore by implication they are acceptable you can in terms of your contract make them unacceptable the parties are accepting that they can't accept you know to change the legislation between themselves but they can accept to impose an additional obligation by saying that it's not going to be valid again it it would be a simplistic answer would be if if the ACT said that um all leases can be all leases must be signed electronically you can't then vice versa say well electronic signatures won't be valid you must sign with W Ang so it's yeah right uh the next one numi is asking uh what happens when the purchaser or seller is overseas the contract is signed electronically which is valid in that country and a dispute arises we are we we applying South African law to the sale agreements in question um uh Donia is asking Dave please could you repeat the clause on no variance or perhaps it can be provided the group chat okay um I'll go through it slowly I've got it chat so where's my wording for that if you just give me a [Music] second okay so the the best way to phrase it would be to have a clause that says no variation alteration or consensual termination may be given effect to by way of electronic data messaging sorry Dave I quickly had to plug in my computer all right all right I think we had a bit of a low Shing glitch on our our plugs here all right so perfect thanks Dave um okay have you got it yeah yeah right thank you so we'll go to the next one now you can go Kina 100% okay soash my apologies is asking is a land entitled to rental if he fails to sign a lease contract which has been agreed to Via either a WhatsApp or email discussion yeah remember in terms of law a lease agreement there's nothing that says a lease agreement has to be reduced to right in and signed by both of the parties that's a specific lease agreement remember when we discussing lease agreements here we talking that you've got a traditional lease agreement that's been reduced to writing and both of the parties have signed it that's the lease agreement that we dealing with you if there's a verbal agreement to lease a property and the lease agreement doesn't exist yes the landlord is entitled to enforce it you can have a verbal lease agreement there's no issue with that and it has the same legal consequences provided that the parties are there's a meeting of mans with regards to what are the terms so what is the period what is the property what is the monthly El or rental amount and that's why we would always say it'd be foolish not to reduce it to writing because if you are have a verbal agreement where your lease or your rental amounts 5,000 and there's no one else that's witnessed that and it's not reduced to right then the landlord's going to find it quite difficult to recover that amount um Jessamine or Jessamine sorry if I'm saying your name wrong is asking is in this case when signing a document in person but on a signature pad which I know the banks do a lot is this considered an electronic signature or wet ink no that's an electronic signature again so we like I said it's I'm not an overly technological person so that's why I would Define the electronic signature in sort of contrast to a waiting signature and a waiting signature is you've got a Pen in Hand it's got ink and it is being applied to a page right we do have an off topic question here but I'm first going to see if we have more electronic signature questions we are are sorry I did I did see something pop up just while you're looking oh yes um someone did mention that docy sign isn't actually um authenticated which is interesting I mean I don't know I don't use it because again I'm working in a system where we need wetting signatures but just so you can bear in mind I was surmising that docy sign would have authent um yeah official signatures um Advanced signatures but it doesn't so that's an interesting point I think Adobe might be the one who's got the advanced function because it's got a a security feature on it as well so I I think it might be okay but yeah it's still still not relevant for the conversation because it can't be used for S agreement whether Advanced or not Advanced exct but I see Adobe doesn't obviously knows what he's talking about he well again like you said it comes back to to the law anyway yeah all right so Martin says in the old days a seller could accept an offer by telegram is this still the case I would be lying if I said because and Martin if you can send your email address and I'll do some research with some of my um other colleagues who have been around for a bit longer than me and know the legalities of a telegram I I don't know how a telegram operates but okay you would need to actually apply a signature to it so yeah I mean it's fact you can fax the contract it comes through the other side you sign it with W in and you fax it back that's acceptable I I don't honestly know how a telegram works not anymore though okay Janet is well this actually comes from one of our own Jan says Dave you spoke about sending emo instructions whilst under the influence of alcohol surely a signature where alcohol is consumed is not taken seriously yeah but you need to prove that the person had been drinking so again it goes back to you know it is valid until the country is proven so you that person who sent that um would need to show that they were intoxicated and that they weren't in a frame of mind to actually be able to understand or have the offer and acceptance that's required for the existence of a valid s so if you sitting on your own on a Saturday night drinking well then you're going to have problems because how are you going to show that you were so intoxicated that you couldn't understand what you're doing okay it just it's it's not the best example but it is just saying in a fit of rage I can send off an email or a yeah an email or a WhatsApp message asking to cancel a lease and other person accepts and then it is deemed to be cancelled yeah I see there's two people are were asking again about initials and I think uh as it was answered before when it comes to a sale agreement it has to be wet Inc that those can't be done on someone said there you don't need Witnesses that's correct um but each page of the sale agreement does need to be witnessed by the parties there too um Witnesses themselves on there's no legal requirement for Witnesses in terms of a will there is but in terms of a sale agreement there isn't there's nothing in legislation but you know so if your part two parties to it sign and w can initial all the way through and your Witnesses for whatever reason apply a electronic signature it's not going to invalidate it because you didn't need the Witnesses in the first place right um I think uh I think we if we can be here all day I think you're going to get a lot of questions but we do need to start concluding today's session um I want to make it clear to everyone who's attended we will be sending a recording to you as well if you want to go back to the discussion and just review what was said and what what questions were asked and answered uh but we do have to conclude our session at this point um Dave I really appreciate your time thank you so much for the informative information and also paying attention to each of these questions and giving a valid answer for all of them I've learned something as well especially as as someone who's not specifically in the uh industry but I do obviously um have had the experience with lease agreements and whenever I do get to the purchasing process it's good for me to know this as well so for me as a bystander for sure valuable as well yeah perfect well again thank you very much for having me um yeah there obviously are a lot of questions around this and if anyone has any that weren't touched on or that want to bounce around any sort of ideas by all means I'm very happy for people to contact me I think whenever I've done these sort of talks I've had people contact me afterwards and it's absolutely no issue I mean I find it interesting and it's it's part of what we do because it makes our job easier when agents are informed so that's that's why we do these things and that's why we always very happy to interact and you know what I'm saying I'm I would never say is definitive and I would be very happy to to bounce ideas off anyone so yeah again thanks very much enjoyable morning and please reach out to me if there is anything fantastic we will share Dave's details in the email that we send out with the recording so please be on the lookout for that thank you so much Dave thanks for thank you hope everyone has a good rest of the day thank you thank you to our audience bye bye bye