At the end of my previous post on the application of the E-Commerce Act to land transactions, I mentioned ‘measures that might be useful to ensure that the change does not increase the risk of real estate fraud’. (None of this affects the *registration* of land transfers by electronic means.)
I have recently had drawn to my attention a set of technical specification for electronic signatures in land transactions adopted by OACIQ, the Quebec governing body for real estate brokers (the equivalent of the Real Estate Council in Ontario and some other jurisdictions). These are very detailed, though in principle technology-neutral. They do not require a technology, but they require a lot of specific functionality (and insurance coverage).
OACIQ also has a system for certifying that any particular system meets the technical specifications.
It appears that the Quebec system aims to comply with the province’s framework legislation for IT matters, the Act to establish a legal framework for information technology. This Act set out requirements for electronic documents (mainly that the integrity of the information must be ensured – s. 5ff) and for some kinds of electronic signature, notably digital signatures supported by a public key infrastructure (s47ff).
Is that kind of detail needed in the law of Ontario (or the other common law provinces) to support electronic real estate transactions? Should people in the industry at least use the Quebec rules as a guide to prudent practice?
Do you think that land transactions present unique or special risks if done by electronic means? Are the standards of prudent practice applicable to land transactions documented on paper sufficient when applied to electronic transactions? If not, what should supplement them?
In your experience, do problems arise in land transactions (or any commercial transactions) because of flaws in a signature on a transactional document, or challenges to a signature or efforts to repudiate a signature?
Should the law focus on the integrity of the documents as a whole and their attribution however proved, rather than on the signature in particular? Or should that be a matter of practical guidance and education for those handling land transactions, whether lawyers or real estate agents?
What of the ‘self-represented’ buyers or sellers of land: should they be required to comply with such technical standards in order to create a valid transaction?
P.S. My own views on the law and practice of e-signatures are here, but what of their application to land transfers in particular? If you think I am wrong or incomplete on the general discussion, feel free to point it out as well.