In an increasingly digital, technologically advanced and globalized world, people find it more convenient to do away with hard copy documents if possible. While the use of digital signatures has made it more convenient for contracting parties situated in different countries, the need to consider electronic signing for documents by parties in the same country was brought to the forefront with the inevitable disruption caused by the Covid-19 pandemic. Movement restriction measures put in place have made obtaining wet ink signatures on paper inconvenient.
In this article, we will highlight some issues relating to electronic signing for leases or tenancy agreements between landlords and tenants in Singapore.
Are electronic signatures acceptable for Tenancy Agreements?
The Electronic Transactions Act (Chapter 88) (“ETA”) serves to support the legal enforceability of electronic records and signatures. In particular, sections 7 and 8 in Part II of the ETA provide, respectively, that an electronic record or signature which meets the requirements in the ETA satisfies any rule of law requiring information to be written or be in writing or requiring a document or record to be signed.
However, certain transactions and documents are expressly excluded from the scope of Part II of the ETA. This means that if a transaction or document is excluded, one cannot rely on the provisions of the ETA to satisfy the legal requirements for writing and signature.
Contracts for the disposition of any interest in immovable property are excluded from the scope of the ETA. As a lease or tenancy agreement is a contract for the disposition of interest in immovable property and therefore is excluded from the scope of the ETA, a party to such agreement cannot rely on the ETA to satisfy the legal requirements for writing and signature.
However, the exclusion under the ETA does not prevent leases or tenancy agreements from being carried out or concluded electronically. An electronically signed lease or tenancy agreement can still be enforced if the court is satisfied that the requirements under section 6(d) of the Civil Law Act (Chapter 43) (“CLA”) are met . The requirements under section 6(d) of the CLA that must be met are:
- There must be some promise or agreement, or a memorandum or note setting out such promise or agreement;
- It is in writing; and
- It is signed by the party to be bound by the agreement.
The issue therefore is whether handwritten wet ink signatures to a lease or tenancy agreement are necessary in order to satisfy the signing requirement under section 6(d) of the CLA.
The court in SM Integrated Transware Pte Ltd v Schenker Singapore (Pte) Ltd  2 SLR(R) held that they were not, and accepted a soft copy of the tenancy agreement sent via email with an inscription of the sender’s name and e-mail address to the counterparty with a note that the terms are accepted as meeting the signing requirement. The Court of Appeal in a later case of Joseph Matthew and another v Singh Chiranjeev and another  1 SLR 338 affirmed this, and opined that “the requirement of a signature under s 6(d) is a flexible one provided that it is clear that the document (or documents) concerned emanated from the person (or persons) ‘signing’ them”.
So, simply put, the burden is on the party seeking to rely on the lease or tenancy agreement to show that the electronic signature was appended by the party who had “signed” it. An electronic signing platform which has security features allowing for the identity of the person signing to be verified and authenticated will arguably meet the legal requirement for a “signature” under the Civil Law Act.
Potential changes to the ETA
There are potential changes to the ETA in the pipeline. The Infocomm Media Development Authority of Singapore issued a consultation paper on 27 June 2019 to seek views from the public on amongst others, removing documents and transactions in the list of Excluded Matters for most business-related transactions.
One of the proposals is to remove “contracts for the sale or disposition of immovable property or any interest in such property” from the list of Excluded Matters. The IMDA further proposed that only secure electronic signatures be accepted for property transactions concluded electronically. The effect is that parties to leases or tenancy agreements can then rely on the ETA to enforce such leases or tenancy agreements provided that secure electronic signatures were appended to them.
This much awaited change is welcomed. Not only would it provide greater certainty on the enforceability of electronic signatures and dismiss the common misconception that electronic signatures to leases or tenancy agreements do not satisfy the signing requirement, the requirement for a secure electronic signature would also mitigate concerns of fraud for such transactions.
Lee Soo Chye, Partner, Wee Swee Teow LLP
Jacqueline Teo, Senior Associate, Wee Swee Teow LLP
Vera Koh, Associate, Wee Swee Teow LLP
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 Please note that leases that are beyond a certain number of years will have to comply with the Land Titles Act (Cap. 157) for purposes of registration and the passing of title under the LTA. For the purposes of this note, we will not expound on this in detail. See paragraph  of the judgment. See paragraph  of the judgment.