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25.04.2014
Over the last few years, the use of electronic signatures to conduct business has increased dramatically and consumers are increasingly demanding the convenience of electronic transactions.    According to a recent survey conducted by Harris Interactive® for DocuSign, nearly 75% of consumers are frustrated with completing paper?based documents and would prefer the convenience of using electronic documents to conduct their business affairs. Unfortunately, the real estate industry has been slow to adapt to this new dynamic and there appears to be some lingering uncertainty over whether electronic signatures are legal under Kansas law.  Thankfully, Kansas law explicitly states that electronic signatures are enforceable and can be used to conduct business in lieu of written signatures. Under the right circumstances, even the simple act of a person typing their name at the bottom of an email agreeing to purchase an item can be considered a valid and enforceable electronic signature.  However, the most common forms of electronic signatures used to conduct business are much more elaborate and secure products such as DocuSign. In 2000, Kansas enacted the Kansas Uniform Electronic Transactions Act (KUETA).  Under KUETA, electronic agreements, records and signatures are clearly legal and enforceable as a valid substitute whenever any statute, regulation or agency guideline requires a contract, record or signature to be in writing. Although the definition of “transaction” in KUETA does not explicitly state whether it applies to real estate transactions, the legislative history of the act makes it clear that real estate transactions are included and can be conducted through electronic means.   Over the past few years, the Kansas Court of Appeals has reinforced this intent by applying the provisions of KUETA to several cases involving electronic agreements and real estate transactions. In May 2008, the Kansas Real Estate Commission (KREC) discussed this issue and took no action to limit the use of electronic records and signatures in real estate brokerages and transactions.  In fact, KUETA specifically prohibits KREC from adopting any limitations or restrictions on the use of electronic records and signatures to conduct business in real estate transactions or to store real estate brokerage records in the brokerage’s transaction files. The simplest method to obtain the agreement of all parties to conduct the transaction through electronic means is to use a real estate brokerage agreement (such as a listing agreement or exclusive buyer contract) that includes language explicitly authorizing the parties (the client and the real estate licensees) to conduct their business electronically.  If you have not done so already, please consider updating your standard brokerage relationship agreements to include this language, which can be found in all of the KAR?approved standard brokerage relationship agreements. Once the customer or client has signed the brokerage relationship agreement containing this language, then electronic signatures can be used to complete the remaining steps in the typical real estate transaction.  For example, an Exclusive Right to Sell Listing Contract authorizing the use of electronic means would give the real estate licensee and the client the ability to agree to a listing price reduction or an extension of the listing agreement by exchanging emails.
If you are working with out?of?town buyers or sellers, you can cut down on mailing and shipping costs by using a secure service such as DocuSign to electronically sign all the required documents for the real estate transaction.   Instead of waiting several days for  documents to be signed and returned through the traditional snail mail method, the required documents can easily and quickly be signed and returned electronically via email.


However, I must caution the decision whether to utilize electronic records and signatures to conduct real estate business and store real estate brokerage records is an individual business risk management decision for real estate brokerages.  If you intend to utilize electronic records and signatures in your real estate business, each supervising broker should establish a set of policies and procedures governing the use of electronic records and signatures to conduct business for the real estate brokerage.
In situations where the parties attempt to enforce an agreement or contract that was formed through electronic means, the party  attempting to enforce the agreement or contract will still have to prove that all the parties intended to enter into the agreement or contract.  In my opinion, the use of a secure and sophisticated electronic signatures platform such as DocuSign will make it much easier to establish an effective paper trail in these complicated situations .
Luke Bell is the Vice President of Governmental Affairs for the Kansas Association of REALTORS®.
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Bauer & Pike provides clients with expert legal counsel regarding residential, commercial and industrial transactions. We provide the particular type of professional service that matches the specific needs of clients, whether they are large corporations, real estate investment trusts or singular entities.  These clients work in all areas of real estate as investors and real estate brokers, tenants, developers, mortgage lenders and brokers, landlords, property managers, bankers, contractors, insurers and other real estate industry service providers. Karbank Real Estate Company specializes in the development and brokerage of industrial, office and commercial real estate.


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