For more than two decades electronic signatures have been authorised for the legal execution of documents-however, the pandemic has forced their widespread use.
What should landlords do to ensure they are executing documents correctly?
The law
An electronic signature is defined by s7 of the Electronic Communications Act 2000 as:
(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.
This is distinct from a digital signature which is an advanced type of electronic signature containing more layers of security to prove its authenticity and suitable for high risk or high value transactions.
“An electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.”
Tenancy Agreements
Tenancy agreements entered into by Housing Associations are contracts. Therefore, if the usual formalities for a contract are present (offer and acceptance, consideration, certainty of terms and an intention to be legally bound) a simple contract such as a Tenancy Agreement from a Housing Association can be signed electronically. The signature shows the intention of both parties to be legally bound.
This can be done by, for example:
- The signatory typing their name or initials at the bottom of an electronic document,
- A scanned handwritten signature that is incorporated into an electronic document or pasting an image of a manuscript signature into an electronic document.
- Clicking an "I accept" or "I agree" button on a website.
- Using a stylus or finger to sign an electronic document via a touchscreen or digital pad.
What should be born in mind is while any of the electronic signature types are legally valid, the method chosen determines its authenticity if it is ever disputed. A Housing Association should make sure their choice captures enough information to be sure both parties intended to be bound by the tenancy agreement.
Acceptable Behaviour Contract (ABC)
Like a tenancy agreement, an ABC is a form of contract. Landlords should plan ahead and consider that their chosen type of electronic signature needs to be able to withstand challenge in litigation. As an ABC also amounts to a contract the same options for signature are available as a tenancy agreement but landlords should consider whether something more trackable is appropriate. Consider:
- A web-based e-signing platform such as Adobe Sign or DocuSign to generate an electronic representation of a handwritten signature; or
- A digital signature using PKI cryptography which is backed by a digital certificate from the platform to verify the signatory’s identity and link the signatory to their public key.
Witness Statements
Witness statements are classed as court documents, not contracts. However, the 2019 Law Commission report states that the law on contracts has broad application and is not restricted to commercial and consumer documents indicating an expansive approach to the use of electronic signatures.
Formalities
As court documents, witness statements have their own requirements as per the Civil Procedure Rules (CPR). These are:
Witness statements must be signed by a person (due to CPR 32.4(1)) and it is noted of the CPR generally, that where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means.(CPR 5.3)
Comment
During the pandemic, landlords have had to become much more flexible in the way they have gone about having documents signed, and some of the ‘normal’ procedures have gone out of the window.
Likewise, the courts have also adapted and, in our experience, have been extremely amenable in allowing electronic signatures on court pleadings and in witness statements. It is difficult to see why this should revert as we look to a post-pandemic future.
The electronic signature serves as evidence that the signatory intended to authenticate the document. As long as there are appropriate records of witness’s intention to authenticate the statement, electronic signatures should continue to be acceptable. Time will tell!
If you wish to discuss any of the issues discussed in this article, please contact our Property Team.
