It is important to make sure the agreement is signed by all the parties who need to sign it. If a party is a trust or company, make sure that all the trustees or directors of the company have signed the agreement, or they have the authority to sign on behalf of another.
You will need to have the relevant legal document of authority, for example, a power of attorney. If it is marital property, ensure all parties on the title have signed.
Under the AML/CFT Act 2009, you must make sure that the parties signing the agreement are in fact who they say they are.
Read more about AML at dia.govt.nz(external link)
Using electronic signatures
REA’s view is that it is acceptable for you to obtain a person’s signature to a contract and certain other documentation electronically as long as certain requirements are met. The legislation that governs the use of electronic signatures in New Zealand is the Contract and Commercial Law Act 2017 (CCLA).
Section 226 of the CCLA says that a legal requirement for a signature, other than a witness signature, is met by means of an electronic signature.
Section 228 of the CCLA says that an electronic signature is presumed to be reliable if certain factors are present. These factors are specified in subsection 228(1):
a) the means of creating the electronic signature is linked to the signatory and to no other person;
b) the means of creating the electronic signature was under the control of the signatory and of no other person;
c) any alteration to the electronic signature made after the time of signing is detectable; and
d) where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.
The above list is not exhaustive, and a person can prove an electronic signature is reliable or otherwise on other grounds (section 228(2)).
It is your responsibility to have IT solutions in place to ensure that the reliability of the electronic signatures can be demonstrated. If these aren’t in place, any contracts signed electronically could be challenged. REA recommends your legal advisor reviews your IT solutions for compliance.
Contracts that are signed electronically must still meet all other relevant requirements. You must, for example, provide the approved guides as required and recommend that advice is taken before signing any contractual documents (and give the opportunity for that to occur), as required by the Real Estate Agents Act 2008 (the Act) and the Regulations and Rules made under the Act.