I wanted to share a recent article I authored for Realtor Magazine which was published in their January/February 2013 edition. The article is based on the Massachusetts court opinion in Feldberg v. Coxall, which I wrote about previously in this post. The court ruled that under recently passed electronic signature laws, emails between agents or attorneys could form a binding agreement even where there was no signed offer or written purchase and sale agreement. That’s a scary proposition for any agent! In the article, I suggest using a disclaimer in your email signatures to avoid having emails come back to bite you.
Are Electronic Contracts And E-Signatures On The Way?
Catching my eye this week was a recent New York Times article discussing a New York state court opinion regarding the legal effect of e-mail in real estate contracts. The ruling reaffirmed that e-mail may carry the same weight as traditional ink on paper contracts.
It made me think about the future of real estate contracts and how they will look. Will the common practice of executing four original purchase and sale agreements be replaced by some type of electronic PDF document with electronic signatures? (I hope so. They are in the West Coast now). Same for the standard Offer to Purchase? What about the stack of disclosures and loan documents signed at closings? (There must be a better way). And mortgages are already being electronically recorded in several Massachusetts counties.
I wonder how closings will be conducted in 2021?
Congress and state legislatures have already laid the groundwork for electronic real estate contracts and e-signatures. In 2000, Congress enacted the E-SIGN law which validated certain contracts in electronic form and electronic signatures. In 2004, Massachusetts adopted the Uniform Electronic Transactions Act (UETA), which is essentially updates the E-SIGN law. Lawmakers designed UETA and E-Sign to recognize that “a signature, contract, or other record relating to a transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.” The Massachusetts UETA exempts several types of contracts and disclosures (e.g., wills), but not real estate contracts.
Old Traditions & The Statute of Frauds
But old traditions are hard to change, especially when it involves real estate. As every first year law student learns, Massachusetts real estate contracts are governed by the Statute of Frauds. This doctrine, originated in old English common law, says that any contract for the sale of real estate must be in writing and “signed by the party to be charged therewith.” One can make a compelling argument that secured electronic contracts and signatures serve the purpose of the Statute of Frauds by providing some objective evidence, other than word of mouth, that there really has been a binding deal.
I haven’t found any cases dealing with the interplay between the UETA and the Statute of Frauds. And there’s something about that “wet” ink signature on real paper that gives people security and comfort. The same is true for our beloved Greater Boston Real Estate Board standard form Offer and P&S. We’ll have to see how the issue plays out in the courts.
But if you can purchase a Ferrari online through E-Bay, why can’t you buy a home using a secure electronic contract? How do you think technology will affect real estate in the future? What would you like to see change in the industry?
An excited young couple about to close on their first home walk into into the closing attorney’s office. The day before they received via secure email all of the loan documents to review and approve with their personal attorney. The closing attorney arrives without any paper, armed only with a laptop attached to a digital signature pad. The sellers are not present as they have already signed the deed and other documents electronically the day before over the secure electronic closing system. The couple quickly review the closing documents on the attorneys’ laptop, clicking an “I Agree” button acknowledging receipt and review of each document. The couple sign the digital signature pad, and the captured signatures are automatically applied to all of the signature blocks of the documents. The closing attorney electronically notarizes all documents requiring witnessing or notarization. The closing is over in 15 minutes, and the couple walks out with a CD-ROM containing all the signed closing documents and the keys to their new home. The closing attorney then electronically records the deed and mortgage with the registry of deeds, funds the loan, and makes all of the disbursements. The executed loan documents are then electronically transmitted to the lender and digitally archived.
This is not an imaginary scenario. Electronic closings (e-closings) are happening now, and they are the future of real estate conveyancing. I believe that electronic closings will change the way lenders, title companies and closing attorneys do business.
The advantages of an e-closing system are numerous and include:
More convenient and efficient closing process for home buyers and sellers.
Automated delivery of electronically signed loan documents directly to post closing – eliminating costs and time. Fund the loans faster, in as little as 48 hours.
Drastically improve the efficiency of real estate transactions with reduced contract-to-closing times.
The Green Factor: Eliminates thousands of paper documents. Buyers receive the entire signed closing package on CD.
Reduce shipping and closing costs.
Electronic closings are very slowly moving into Massachusetts. (Attorneys, who must conduct most real estate closings in Massachusetts, are notorious late adopters of new technology). Since July, without much fanfare, the Middlesex Registry of Deeds in Cambridge, Hampden County Registry in Springfield, and Plymouth Registry of Deeds have adopted electronic recording capabilities. Hopefully, the other registries follow suit.
Electronic closings are a great selling point to customers mortgage lenders, banks and credit unions. Here is a recent article about a credit union in Michigan successfully offering electronic closings.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With over 25 years in practice, he is a four time winner of the "Top Lawyer" award by Boston Magazine, a "Super Lawyer" designation from Thompson/West, and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
I wanted to share a recent article I authored for Realtor Magazine which was published in their January/February 2013 edition. The article is based on the Massachusetts court opinion in Feldberg v. Coxall, which I wrote about previously in this post. The court ruled that under recently passed electronic signature laws, emails between agents or attorneys could form a binding agreement even where there was no signed offer or written purchase and sale agreement. That’s a scary proposition for any agent! In the article, I suggest using a disclaimer in your email signatures to avoid having emails come back to bite you.
