Getting Comfortable with Electronic Signings

Enforceability of E-Signatures, E-Notarization and E-Witnesses in Florida Transactions

By L. Benton Alexander, Jr. and Laura D. Maxwell

The current pandemic has made obtaining original signatures and having documents witnessed and notarized difficult, if not impossible at times. This has particularly affected real estate transactions in Florida, where, like other states, certain documents must be witnessed and notarized to be recorded. Consequently, many are asking whether documents can be signed, witnessed, notarized and stored electronically in Florida. The short answer is yes, with exceptions.

The enforceability of an electronically-signed or electronically-stored document will depend on the type of document and the specific circumstances surrounding the negotiation and signing of the document. Individuals are encouraged to seek legal advice from an attorney if they have questions regarding the enforceability of a particular document.

Electronic Signatures of Parties to a Transaction in Florida

In general, documents may be signed and stored electronically in Florida. Under the Uniform Electronic Transactions Act (“UETA”), which has been adopted in Florida, a “record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form.” However, UETA does not apply to the creation and execution of wills, codicils, or testamentary trusts or to transactions governed by the following: the Uniform Computer Information Transactions Act; rules relating to judicial procedure (with certain exceptions); or certain sections of the Uniform Commercial Code.

An important element of UETA is the intent of the parties to the document in question. To make their intent clear, parties often add a provision to the document being signed. This provision might state that:

• The document may be signed by electronic means;
• Electronic signatures will have the same force and effect as manual signatures;
• A signed copy of the document may be sent via email as a PDF, and;
• A PDF copy will have the same force and effect as an original.

Additionally, for UETA to apply, the person signing the document in question must have intended to sign. This is particularly important in the context of email exchanges. A person’s name or email address auto-generated in the “from” field of an email, or a person’s name inserted as a signature or sign off at the end of an email, could be interpreted as an electronic signature under UETA. To avoid mistakenly creating a contract through email, parties may want to add a disclaimer to their emails which states that the emails do not constitute an offer or acceptance and are non-binding. Conversely, when a party intends to create a contract electronically, they might deliver a manually-signed PDF copy via email or use a program such as DocuSign or Adobe Sign to create a digital signature to the document.

Electronic Notarization and Witnessing of Documents in Florida

Florida passed legislation effective January 1, 2020, authorizing the remote online notarization of documents. To have a document notarized remotely in Florida, one must use an authorized remote online notary public (“RON”), meaning that the notary completed the requisite online training course, obtained the required surety bond and insurance, contracted with an online service provider, and was approved by the Florida Department of State to be a RON.

The online service provider that the RON contracts with provides a secure online audio-visual platform that both the signer and the RON log in to and utilize to complete the notarization. Once the signer and the RON are connected through the platform, the RON verifies the signer’s identity, the signer signs the document electronically, and the RON attaches an electronic signature and an electronic seal to notarize the document. The session must be recorded and stored online by the online service provider along with a copy of the notarized document. RONs may notarize documents for individuals located outside of Florida, but the RON must be physically located in Florida at the time of the notarization.

If a document is required to have signatures witnessed, the witnesses can also sign electronically using a RON in Florida, even if the document will not be notarized. The notary supervises the witnessing of the electronic record using the same audio-visual technology it would use to notarize a document. The witnesses may be in the physical presence of the principal signer, in which case the RON will ask the principal signer a series of questions required under Florida law prior to signing. With certain caveats, the witness may also be remote, provided that he or she is a resident of and physically located within the United States or a United States territory at the time of witnessing. The electronic witnessing of a document must be recorded and stored similar to the electronic notarization of a document.

Conclusion

While the pandemic has increased the need for e-signatures, the ability to use e-signatures in Florida transactions existed prior to the pandemic and will most likely continue to exist post-pandemic. As individuals and businesses become more comfortable with the use of e-signatures, e-notarization, and e-witnesses during the pandemic, they may find that using electronic signatures and records reduces the spatial, financial, and environmental burdens of physical records retention and offers a more convenient way to enter into, modify, and close transactions.