*This article is applicable on Belgian legislation*
Small intermezzo because a hot topic has been taking all the spotlight in the real estate world the last couple of days. There's been a lot of controversy about the electronic evidential value of an accepted offer via e-mail. It brought us as real estate agents in a tough and insecure position, there was no clarity whatsoever, no concrete legislation on our side, we had no other option than to give our clients the message that it was a risk.
Luckily, we received answers on the 10th of October 2018. Now there's a full written law regarding closing contracts electronically. And our Economic law code has also been adapted in a way that real estate transactions are no longer an exception.
The legal uncertainty started after a judgement of the Antwerp Court of Appeal from 10 december 2016, in which was stated that a buying-and-selling agreement could not be made based on an electronic evidence, meaning that en e-mail had nu evidential value for the buyer or seller. You probably get that this brought a lot of disrepute amongst people.
Primary because this decision belongs in the Middle Ages and not in an era where digitalization is the norm. I'm just telling you that we can't get every client to come over to our office to sign a written offer with every in the negotiation. Negotiations are done over the phone, by e-mail-, by sms.... Because time is of great value to everyone.
Secondly, because the Court of Appeal in Gent had ruled that even a text message was enough as legal evidence.
And thirdly because Belgian Law had already implemented the possibility to close contracts electronically in its new Economic Law Code, but real estate transactions were stated as an exception which meant that electronic evidence in real estate negotiations had no legal value. Briefly, the regulations did not comply with the everyday activities in the real estate world. Luckily, minister Alexander de Croo realized that we were in need of a solution. A legislative proposal was made in order to overcome any obstacle that has presented itself in the past.
The specific purpose was that Courts didn't have to start from; "a buying-and-selling agreement can never be closed electronically." But they could start from: "an e-mail has enough evidential value to close a real estate transaction." Meaning that they just need to give arguments regarding the impossibility of the practical outcome rather then to question the evidential value. For example the classics like: deception, aberration, hidden defects, identity fraud...
There's one thing that can still negate the evidential value of the e-mail; not living up to he formal requirements, meaning that an e-mail should have an electronic signature. Luckily, this is foreseen as a broad term in the legislation, which means that a handwritten and scanned signature complies.
This obviously does not mean that you shouldn't make a purchase contract with the notary as stated in my previous article. An e-mail and a text message are still no contracts, they just support the evidential value of an agreement.
I hope this clears things up for you, I must say I'm kind of relieved. A lot of mixed signals have been given by the media the past couple of months. But now we're on the right track!