Real Estate Contracts: Be Careful When Using Email and Voicemail



Q:
I thought a real estate contract couldn’t be enforced unless it was in writing, but a friend just told me I could make a contract through email or voicemail. Is that true?
A: Yes. It used to be true that real estate contracts could not be enforced unless the agreement was in writing, contained the essential terms of the deal, and was signed by the party against whom the contract was to be enforced. However, in 2000, Ohio enacted the Uniform Electronic Transactions Act (UETA). Under the UETA (Chapter 1306 of the Ohio Revised Code), an electronic record can have the same legal effect as a written document. The UETA defines electronic records broadly as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” An “electronic record” is any record that is “created, generated, sent, communicated, received or stored by electronic means.” Email and voicemail are electronic records.  

Q: Does an electronic signature have the same force as a written signature?
A: Yes. According to the UETA, typing your name at the bottom of an email or saying your name as part of a voicemail can, in some cases, be considered a signature.

Q: What if I am asked to complete a real estate contract by email, but I’d rather have something in writing? 
A: The UETA only applies to a transaction if both parties have agreed to conduct the transaction electronically. In fact, some businesses refuse to negotiate, or even discuss, deal terms by email. If you do negotiate by email, it’s a good idea to include a disclaimer statement in each email, warning that the message is not intended to be an offer, an acceptance, or otherwise contractually binding.

Q: What if I call the other party and leave a voice mail message with information about what should be included in the contract?
A: If you are negotiating a deal, you should never leave a voicemail message detailed enough to inadvertently create a contract. In short, you should never say anything in an email or a voicemail that you would not say in a signed contract.

2/1/2017

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Columbus attorney Jack Levey of Plunkett Cooney.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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