The process for obtaining consent to electronic delivery and signatures in consumer real estate transactions was discussed in the February 2008 Legal Update, “Electronic Commerce and Email Delivery,” which can be found online at www.wra.org/LU0802. The following practical implementation tips supplement that discussion. The Consent for Use of Electronic Documents and Signatures in Consumer Real Estate Transactions (Consent) and the Addendum D – Electronic Document Delivery needed in this process are available on the WRA E-Commerce Resource page (www.wra.org/ecommerce).
Using Consumer Consent with Listings
Laptop: When the listing agent visits the seller to take the listing, the agent should bring a laptop along, if possible. If the seller also has a computer, the agent can email the Consent to the seller and the seller can complete/sign the Consent and immediately email it back.
Complete ASAP: If the seller’s electronic consent cannot be obtained on the spot, the agent should explain that the agent will email the Consent to the seller and that the seller should complete the Consent and email it back as soon as possible.
Using the Addendum D with Listings
Form information: The listing agent should complete the top of the Addendum D for use with the Listing Contract (cross off Offer to Purchase and Buyer Agency Agreement and fill in the date of the listing and the property address or description).
Broker email: The listing agent should fill in the email address that will be used for electronic delivery to the listing broker with respect to the listing contract and then initial the form.
Seller's email: The seller should fill in the email address the seller wants to use for electronic delivery with respect to the listing contract and then initial the form and check the box to indicate that the seller has given electronic consent.
Attach: The listing agent should then incorporate the Addendum D into the listing contract to make it part of the contract. (Make certain to reference the Addendum D in the listing contract.)
Amend: If there will be a delay in obtaining the seller’s Consent, the Addendum D may be added to the listing later by attaching the Addendum D to a WB-42 Amendment to Listing Contract.
Prepare the Addendum D for Offers
Form information: The listing agent should complete the top of the Addendum D for use with offers (cross off Listing Contract and Buyer Agency Agreement, and fill in the property address or description).
Seller's email: The seller should fill in the email address the seller wants to use for electronic delivery with respect to any offers and then initial the form and check the box to indicate that the seller has given electronic consent.
Email address for delivery: The email address the seller fills in may not be the seller’s own email address — it may be the email address for the listing agent or someone else, similar to when the parties’ fax numbers or mailing addresses are filled in on lines 22-33 of the WB-11 Residential Offer: the mailing address, fax number in the offer and (now) the email address on the Addendum D do not have to be the seller’s own personal contact information.
Optional: The listing agent may fill in the listing broker’s email address and initial the form, but this is optional and purely informational because the listing broker is not a party to the offer to purchase.
Make the Addendum D Available to Buyer Prospects
MLS: The Addendum D the listing agent and the seller have prepared for offers may be mentioned in MLS remarks and posted in “Associated Documents” or “Other Documents” if that feature is available.
Open house: The Addendum D the listing agent and the seller have prepared for offers may be copied so that copies may be left at the property so that prospects attending showings or open houses may pick up a copy to use when they write an offer.
Inquiries: The listing agent should make sure that any agent or buyer calling to inquire about the property is told that the seller has completed the Addendum D and consents to the use of electronic delivery with offers.
Offer: Buyers should complete the Addendum D (that has already been completed by the seller) and incorporate it into any offers they write on that property.
Using consumer consent and the addendum D with buyer agency agreements
Use the same procedure outlined above for Using Consumer Consent with Listings to obtain the buyer’s electronic consent.
- Use the same procedure outlined above for Using Addendum D with Listings to prepare an Addendum D to use with the WB-36 Buyer Agency Agreement.
Using Consumer Consent with Buyer Customers
- Use the same procedure outlined above for Using Consumer Consent with Listings to obtain the buyer’s electronic consent when the Broker Disclosure to Customers is executed.
Using Addendum D for Offers When Not Furnished by Seller (Buyer Clients and Customers)
Form information: The cooperating agent should complete the top of the Addendum D for use with offers (cross off Listing Contract and Buyer Agency Agreement).
Buyer's email: The buyer should fill in the email address the buyer wants to use for electronic delivery with respect to any offers and then initial the form and check the box to indicate that the buyer has given electronic consent.
Email address for delivery: The email address the buyer fills in may not be the buyer’s own email address — it may be the email address for the cooperating agent or someone else, similar to when the parties’ fax numbers or mailing addresses are filled in on lines 22-33 of the WB-11 Residential Offer: the mailing address, fax number in the offer and (now) the email address on the Addendum D do not have to be the buyer’s own personal contact information.
Condition of acceptance: The Addendum D then can be used with the offer, which may be written to require the seller to complete the seller’s portion of the Addendum D as a condition of the seller’s acceptance of the offer.
Methods for Sending the Consent to the Party
Broker information: In all cases the agent should complete the broker’s contact information on the Consent and save it so it is ready to send to clients and customers.
PDF attachment: If the agent sends the consumer a PDF Consent document as an attachment, the consumer must print the Consent, complete it and scan it in so that it can be saved on the consumer’s computer and returned to the listing agent as an attachment to an email.
Word attachment: If the agent sends the consumer a Word Consent document as an attachment, the seller can complete the Word Consent, save it on the seller’s computer and return it to the listing agent as an attachment. Note: Just because a Word Consent document is used does not mean that the party is not consenting to the delivery of PDF documents.
Copy form into email: The EASIEST way for an agent to obtain electronic consent is to copy and paste the Consent language into the body of an email, send it to the party, have the party click on “reply,” type in the party’s name and email address and send it back to the agent.
Two attachments: Another approach is to attach both the Word and PDF Consent documents to an email and ask the party to open both and to complete and return one of them.
Debbi Conrad is Director of Legal Affairs for the WRA.