Electronic Agreements in Alberta
In this digital age, the transition from “pen-to-paper” signatures to digitally signing electronic agreements has been fairly seamless. Real estate agents have adopted new technologies that bring the transaction right to the client’s fingertips – buyers can now buy a home virtually, from the tour of the home to the closing of the deal, from anywhere. But what about the legalities of it all?
The Real Estate Council of Alberta (RECA) is the Real Estate Act governing and licensing organization in Alberta, mandated to protect consumers, and they published a great information bulletin on the history and enforceability of electronic agreements in Alberta.
According to RECA, they looked at both the Alberta Statue of Frauds and the Electronic Transactions Act (ETA) to establish their position.
RECA writes, the Statute of Frauds states agreements for interests in land, which includes the buying and selling of land, must be in writing and the parties to the agreement must sign the agreement. Electronic signatures have not been judicially considered in Alberta to determine if they satisfy the requirements of the Statute of Frauds. The definition of “writing” in the Interpretation Act (Alberta) and the Interpretation Act (Canada) has been judicially considered and deemed to include “facsimile transmission or electronic mail.”
Now, the ETA was created to ensure that electronic records and transactions have the same validity and enforceability as paper-based transactions, under certain conditions. To be valid, the electronic information must be: organized in the same or substantially the same manner as the paper form, is accessible and capable of being retained for future reference. The ETA deems an electronic signature valid and of the same status as written ones if it identifies both the person who signed and the purpose of the signature in relation to the signed document.
It’s important to note that neither of the above considerations have been tested in court so no actual precedent has been set and RECA’s current position may change as case law develops in these areas.
So, what is RECA’s position? That real estate contracts in electronic form are valid & enforceable and that electronic real estate agreements with electronic signatures are equivalent to those written on paper.
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