E-Signatures and the Statute of Frauds

Fla. Stat. §725.01, is called the “Statute of Frauds”, it requires that, in order to be enforceable, a contract involving the sale of an interest in land must be memorialized in a written instrument signed by the party against whom enforcement is sought (or by some other lawfully authorized person). Accordingly, an enforceable real estate contract must satisfy two threshold conditions: (1) it must be in a written memorandum signed by the party against whom enforcement is sought, and (2) the written memorandum must disclose all the essential terms of the sale. However, practitioners should note that what exactly constitutes a “writing” and what constitutes a “signature” has evolved significantly since the codification of the Statute of Frauds. As a result, when considering the enforceability of a seemingly unexecuted real estate contract, the practitioner should carefully consider all e-mails and other correspondence exchanged between the parties.

Florida law states “[t]o satisfy the statute; a note or memorandum may take almost any possible form.” Written evidence from which the whole contract may be made out is all that is required. Several writings may be aggregated to satisfy the minimal threshold. In interpreting the signed writing requirement of the Statute of Frauds, numerous courts have found that e-mails can meet the writing requirement under Florida law.

Furthermore, the “execution” of a written contract or memorandum may be affected by the provisions of Fla. Stat. §§668.001-668.006 (the “Electronic Signatures Act”). The Electronic Signatures Act provides that an electronic signature may be used to sign a writing and that an electronic signature has “the same force and effect as a written signature.” An electronic signature is defined as “any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing. The law holds that a writing is electronically signed if an electronic signature is logically associated with the writing. Contracts generated as electronic files, executed by electronic signature, and delivered by e-mail transmission, can be enforced under Florida law. Assuming no other provision of law requires additional formalities such as in the case of a wheel.

Today, most e-mails contain some signature from the sender. That signature, coupled with a writing containing the agreed - upon material terms of a contract of sale could be enough to satisfy the Statute of Frauds, provided the email contains all of the essential terms of the sale.

As technology continues to advance, the courts may continue to expand the scope of what constitutes a “signed writing.” With continued increase of computers and electronic media in real estate transactions, it is important that attorneys, judges, and all real estate professionals understand the ramifications of electronic signatures and electronic communications. As such, when considering the enforceability of unexecuted documents within the scope of the Statute of Frauds, practitioners should review and evaluate relevant correspondence and e-mails between the parties to determine if an enforceable contract has been created. In addition, practitioners should caution clients to use care when exchanging and negotiating the terms of any contract via e-mail to avoid creating a potentially enforceable contract, if none is intended.

Author’s note: I have long intended that these articles be more than puff reading for those of us in real estate. I ran across this article, written by my friend Chris Barr, an attorney in Panama City, and it fits exactly my desire for a short, plainly written message with important content. There was nothing I could do to improve the message, and I have (with Mr. Barr’s permission) therefore reproduced it almost exactly as he wrote it.

This article was published in the Coastal Homes publication of the Northwest Florida Daily News on March 2, 2019: http://www.coastalhomesfla.com/Olive/ODN/NWFLDNCoastHomes/