(E-Commerce) law provides a framework for the use of electronic records and signatures in real estate transactions. While E-Commerce law regulates electronic documents, signatures, records and transactions in Wisconsin, Wis. Stat. § 137.12(2p) indicates that the consumer protection features of the federal Electronic Signatures in Global and National Commerce Act (E-Sign) apply to Wisconsin transactions involving consumers. Parties in Wisconsin must comply with the E-Sign consumer requirements.
Congress imposed special requirements in situations where the parties want to use electronic records or signatures in consumer transactions. Information required by law to be in writing can be made available to a consumer electronically only if:
- specified information regarding the consumer’s rights and ability to use electronic records is first clearly and conspicuously disclosed to the consumer; and
- the consumer affirmatively consents to receive the information electronically.
A consumer’s consent to receive electronic records is valid only if the consumer consents electronically in a manner that reasonably demonstrates the consumer’s ability to access information in the electronic form that will be used in the transaction. Federal law requires that consumers give electronic consent prior to receiving electronic documents delivered by e-mail.
E-Mail Document Delivery under the Revised WB-11 Offer to Purchase
Discussed in the May 2009 edition of Wisconsin Real Estate Magazine (online at news.wra.org/story.asp?a=1115), the newly revised WB-11 Residential Offer to Purchase is coming soon. Among the new features in the revised offer is the parties’ ability to choose e-mail as a method for the delivery of documents and notices.
This means that REALTORS® will no longer need to use a Wisconsin REALTORS® Association Addendum D – Electronic Document Delivery or equivalent language in conjunction with residential offers to purchase. The updated WB-11 provides for personal delivery as a default and allows the parties to also choose commercial delivery, U.S. Mail, fax and e-mail as additional delivery methods when it comes to notices and documents related to the offer. The e-mail option (based upon the most recent draft) provides:
(5) E-Mail: electronically transmitting the document or written notice to the party’s e-mail address, if given below at lines 52 or 55. If this is a consumer transaction where the property being purchased is used primarily for personal, family or household purposes, each consumer providing an e-mail address below has first consented electronically to the use of electronic documents, e-mail delivery and electronic signatures in the transaction, as required by federal law.
Lines are provided where the e-mail addresses for the seller and buyer, respectively, can be written if this option is selected.
As the e-mail delivery item from the WB-11 draft clearly states, the fact that there is e-mail option language in the revised offer does not mean that consumers do not have to first receive disclosures concerning their rights and provide electronic consent to the use of electronic documents, e-mail delivery and electronic signatures. The E-Sign consumer disclosures and electronic consent requirements apply whenever there is a consumer who wishes to receive notices and documents by e-mail that the law otherwise requires must be in writing.
If the buyer and seller have both previously received their disclosures and provided electronic consent with their agents that stated the consent would apply throughout the entire real estate transaction, then the parties do not have to give electronic consent again for the offer. The only thing in this situation that would need to be included in the revised WB-11 would be to check the e-mail delivery box on the first page of the residential offer. With regard to other non-residential transactions, until those other offer forms are updated, either Addendum D or equivalent language in an addendum or in additional provisions should be used.
Addendum D Equivalent Language
Although Addendum D will no longer be used with the revised WB-11, it still may be needed for listing contracts, buyer agency agreements and other types of offers, at least until those forms are also updated. If the parties or REALTORS® in a transaction prefer, language may be inserted in the additional provisions blank lines or in an addendum instead of using Addendum D.
The parties or REALTORS® may consider adding language similar to the following to the additional provision lines of the buyer agency agreement, listing contracts and other offers to purchase. In these samples, the idea is to pick the appropriate introductory language, add the main language and then select the matching e-mail address lines.
Introductory language:
WB-11 RESIDENTIAL OFFER TO PURCHASE (11-1-99 version): “In addition to the methods of delivery authorized on lines 22-33 of this Offer, …”
WB-1 RESIDENTIAL LISTING CONTRACT-EXCLUSIVE RIGHT TO SELL (7-1-08): “In addition to the methods of delivery authorized on lines 193-198 of this Listing, …”
WB-36 BUYER AGENCY/TENANT REPRESENTATION AGREEMENT (7-1-08): “In addition to the methods of delivery authorized on lines 158-163 of this Agreement, …”
Main language:
delivery of documents and written notices to a party shall be also effective when accomplished by electronically transmitting the document or written notice to the party’s e-mail address given below.
If this is a consumer transaction where the Property being purchased is used primarily for personal, family or household purposes, each consumer stating an e-mail address below has first consented electronically to the use of electronic documents, e-mail delivery and electronic signatures in the transaction, as required by federal law.
E-Mail address lines:
For offers to purchase:
E-Mail address for Seller: _______ E-Mail address for Buyer: __________
For listing contracts:
E-Mail address for Seller: _____ E-Mail address for Broker/Firm: _______
For buyer agency agreements:
E-Mail address for Buyer: _____ E-Mail address for Broker/Firm: ______
E-Commerce Resources: www.wra.org/ecommerce
Debbi Conrad is Director of Legal Affairs for the WRA
Published: 10/9/2009
