The acquisition of real estate by e-mail is now considered as legally valid
Are parties allowed to enter into a real estate sales agreement by e-mail? In its judgement of 19 December 2016, the court of appeal of Antwerp concluded that they are not. The court decided that a real estate sales agreement concluded by e‑mail does not have any legal validity, not even as prima facie evidence. Amidst the controversy caused by the judgement the Minister of Digital Agenda, Alexander De Croo, reacted by adopting a new law called “wet van 20 september 2018 tot harmonisatie van de begrippen elektronische handtekening en duurzame gegevensdrager en tot opheffing van de belemmeringen voor het sluiten van overeenkomsten langs elektronische weg”. This law entered into force on 20 October 2018. From that date, and according to the text of the law, only practical obstacles can prevent parties from concluding a real estate sales agreement by electronic means. (The present article is an update of our previous article in Dutch: “Aankoop onroerend goed bevestigen via mail blijft mogelijk, mits voldoening publiciteitsvereisten” of 15 March 2017).
The Antwerp court of appeal based its 2016 judgement on articles XII.15 and XII.16 of the Belgian Code of Economic Law (hereinafter: WER) in deciding that a real estate sales agreement cannot be concluded by electronic means, for example by e-mail exchange (as was the case in this court decision).
With regard to the legal validity and proof of agreements, article XII.15 of the WER provides for a full equalization between written agreements on the one hand and electronic agreements on the other. However, article XII.16 of the WER in turn introduced four categories of agreements for which this equalization does not apply, including the so-called “agreements creating or transferring real estate rights, with the exception of rental rights”. The court invoked this exception in the case at hand to decide that a real estate sales agreement cannot be concluded by e-mail.
The law of 20 September 2018 amends the wording of article XII.16 of the WER in such a way that agreements concluded by electronic means now have the same legal value as regular written agreements where the four categories of agreements stipulated by article XII.16 of the WER are concerned, which includes real estate sales agreements. Consequently, a judge will only be allowed to refuse the application of article XII.15 on a real estate agreement if there are any practical obstacles that prevent the parties from concluding an agreement by electronic means. To illustrate such a practical obstacle, Minister of Digital Agenda De Croo suggested the case “when a certain certificate is needed for the conclusion of an agreement and this certificate is only issued on paper by a government body”.
Does this mean it is now possible to use every e-mail, text or WhatsApp message as a digital proof for the conclusion of an agreement? The answer to this question is negative, as the, for example, digital document in question should always contain an electronic signature in accordance with the amended article XII.15 of the WER, being either a regular or a qualified electronic signature as determined by the European Regulation 910/2014. An electronic signature constitutes a valid proof of agreement if the requirements of article 1322 of the Belgian Civil Code are fulfilled, which means that the signature should be attributable to a person and contains proof of the integrity of the content of a deed.
Hence, parties need to take into account that despite the modifications of articles XII.15 and XII.16 of the WER, their electronic real estate sales agreements always need to meet the three requirements stipulated by article XII.15 of the WER to consider it equivalent to its written version. In summary:
- There must be a document that consists of a sequence of alphabetical characters or any other intelligible characters, located on a medium;
- The document must contain an electronic signature;
- There must be a written statement of the contracting party.
If the above requirements are not met, the electronic document can only be used as prima facie evidence of an agreement.
With the modifications of articles XII.15 and XII.16 of the WER, the Belgian legislator takes a further step in encouraging the digitalization of transactions. Moreover, these modifications ensure more legal certainty for everyone who wants to enter into a real estate sales agreement by electronic means, which one only can support in a strong digitalized society.