The move towards e-conveyancing has encountered many obstacles in its path however the introduction of new regulations earlier this year has removed some of these.
The 2022 Regulations are part of a continued goal of bringing about e-conveyancing in Ireland, the effect of which will see a dramatic reduction in the time it will take to transact for property in Ireland. A key aspect of this goal being the acceptance of e-signatures on real estate documents.
As of 9 February 2022, the Electronic Commerce Act 2000 (Application of sections 12 to 23 to Registered Land) Regulations 2022 (the “2022 Regulations”) have been written into law. The Regulations 2022 allow for the implementation of provisions within the Electronic Commerce Act 2000 (the “2000 Act”), specifically, the implementation of Sections 12 – 23 of the 2000 Act.
The relevant provisions of the 2000 Act for the purposes of this article can be found in Section 13 (1), which stipulates that an e-signature can be used provided that:
“If by law or otherwise the signature of a person or public body is required (whether the requirement is in the form of an obligation or consequences flow from there being no signature) or permitted, then, subject to subsection (2), an electronic signature may be used.”
There are two primary forms of e-signature that are used in Ireland:
- Simple Electronic Signature – This is the most common form of e-signature and can take the form of a typed name or initials, a signature written on an electronic device, a scanned copy of a handwritten wet signature, or a signature generated through the use of software such as DocuSign.
- Advanced Electronic Signature – The use of this signature allows for the signature to be linked to a specific signatory, which can then be changed by the signatory through the use of encryption or passwords that is unique to the signatory. This form of signature as can be imagined can only be achieved through the use of software like the aforementioned DocuSign.
As the law currently stands, e-signatures can be used for numerous real estate documents, however, there are two key caveats to this:
- That the document does not create a legal interest in the property; and
- That the document does not need to register in the Property Respiration Authority (the “PRA“).
These requirements limit the scope of documents which can be signed through the use of e-signatures, and any document that creates a legal interest in the property cannot be signed by way of e-signature. For example, an e-signature can be validly used on a contract for sale, however, it cannot be used on a deed of transfer as the latter would need to be registered with the PRA.
Much of these rules are determined by the PRA as per Section 12 (2) (b) of the 2000 Act, which stipulates that a public body may, at their own discretion, determine the form in which a signature must be made. The effect of this, and the fact that the 2022 Regulations implement this Section, mean that the PRA can determine that e-signatures can be validly used on all real estate documents, including those that create a legal interest in the property.
The 2022 Regulations are in force, however until the PRA publish their guidelines the path to e-conveyancing in Ireland is still not clear.