Digital real estate contracts in Belgium

Today all private contracts can be signed digitally, exept for contracts to be registered in the mortgage register.

The Belgian real estate sector is still waiting for this last missing link.

European Framework

Since the European Directive 1999/93/EC of 13 December 1999 digital signatures are no longer seen as an exception, but as a full-fledged alternative to the handwritten variant. In 2014, the Directive was repealed by the European eIDAS’ Regulation of July 23, which extends the possibilities of electronic identification and authentication and seeks to remove obstacles to the internal market. With this regulation, the European Union aimed to increase confidence in the use of electronic transactions within the union. In Belgium specifically, the Act of 21 July 2016 further implements and fleshes out the eIDAS’ Regulation.

Types of signatures

An electronic signature can be defined as “data in electronic form which are attached to or logically linked with other data in electronic form and which are used by the signatory to sign". The Regulation 910/2014 of 23 July 2014 distinguishes three different types of e-signatures, of which two are unqualified (ordinary and advanced) and one is qualified.

• The ordinary electronic signature is the most easily accessible and consists of an ordinary e-mail signature or a scan of the handwritten signature. Even so, it offers very few guarantees as to who actually signed the document and is therefore not suitable for signing real estate contracts digitally. Document management systems such as Dropbox already propose this possibility by using HelloSign. Nevertheless, this signature offers very few guarantees to the person who actually signed the document and is therefore not suitable for the electronic signing of real estate contracts.

• In turn, the advanced electronic signature meets some additional requirements stated in Article 26 of the above-mentioned Regulation. More specifically, this signature is exclusively linked to the signatory and it can identify him/her. Thereby, the signatory has complete control and subsequent changes to the data can be easily detected.

• The qualified electronic signature is equivalent to a handwritten signature and is the safest variant. A certification body, recognised by the Federal Public Service for Economy, or a foreign supervisory body verifies that the signature belongs to the signatory. The intervention of the certification body means that no problems can arise regarding to the identity of the signatory. Examples are the Belgian eID Card and the Belgian app Itsme.

Today qualified electronic signatures are mostly used on platforms to which the Belgian E-ID can be linked. Examples where qualified e-signatures are used i-in the real estate sector are “the Vlaamse Omgevingsloket”, “Immoweb”, “Immobel” and “real estate group Dewaele”. These are the rare birds in the sector today.

Adobe Reader also offers this possibility but has the disadvantage that it only can be used to sign electronically if both parties have this software at their disposal.

Connective.eu is a company that can help you with this, but DocuSign also offers this possibility for the Belgian market. All you have to do is contact these service providers to discuss the possibilities. Our office collaborates with Avokaado, the Estoian legal tech company, for real estate contracts. The latter also works with DocuSign. It is therefore also possible to digitally sign real estate contracts through this platform.

Legal effects

Thus established the different e-signatures, it is fair to say that they do not have the same legal effects.

It is the legislator of each member state of the EU who decides on the legal effects of the unqualified variants (ordinary and advanced e-signature). In Belgium, for example, the legislative power decided not to attach any special legal effects to the ordinary and advanced e-signatures. The judge is free to assess the legal consequences of the ordinary and advanced electronic signature and to check whether there are sufficient safeguards regarding identity and integrity. However, Article 25(2) of the Regulation states that the legal validity of those signatures cannot be disregarded nor be withheld as legal evidence solely based on the fact that the signature is electronic or is not based on a qualified certificate. Although, they can be excluded or disregarded on other grounds (e.g.: insufficient guarantees regarding the integrity of the signed document or the identity of the signatory).

The qualified e-signature, on the other hand, has the same legal effects as an ordinary handwritten signature and is thus treated the same way.

The new Belgian evidence law

On 1 November 2020, Book 8 of the Belgian Civil Code called ‘Evidence’ will come into force. Unlike the current book, it is more in line with European regulations and takes into account that e-signatures are no longer the exception. In the new Article 8.1, 2° of the Civil Code, a comparison is made between the classic and the e-signature. Thereby, the classic signature is defined in the Article as “a signature in accordance with Article 3.10° to 3.12° of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.” In the following chapter will be explained how e-signatures work in practice in Belgium.

Austria and France

In general, Belgium is not the primus inter pares in the qualified electronic signing of real estate contracts.

In Austria, on the other hand, it is already possible to sign real estate contracts electronically via the platform created by Realest8. Thanks to this platform the buyer can find real estate easily and contact the vendor directly. The buyer identifies himself through Web ID, a transaction that is entirely digital, allowing it to be faster and more secure.

Also, France uses a different system than Belgium. In France, it is possible to sign real estate contracts electronically with a simple electronic signature by using a pen and a touch screen.

Notarial practice

Nevertheless, notaries in Belgium do currently have the option to sign deeds remotely via the digital power of attorney systems. A power of attorney is given by the principal via a videoconference, organised by the notary, and the principal will identify himself via the card reader with the eID and PIN code or via the app Itsme. Once the power of attorney has been given to a notarial assistant or confidential adviser, the proxy holder will go to the notary's office to sign the deed and a copy will be sent to the parties concerned. Most notarial deeds can be signed via a digital power of attorney, also the deeds of sale.

At present, there are no digitized notarial deeds in Belgium, although the Ventôse Act has been able to execute notarial deeds in dematerialized form since 2009, provided that they can be stored safely in a digital database. Since 2004 it is possible to digitally issue notarial deed(s) and group notes in a database called NABAN. Recently the dematerialized copies of paper documents can also be included in NABAN. The fact that it is still not possible to sign authentic acts qualified electronically is related to the creation of NABAN.

Thus, the Royal Decree introducing the Notarial Banking did not enter into force until 24 March 2020. For the moment, only a notarial deed database is provided to store the paper versions of the signed paper deeds in this database. The article allowing purchase deeds with qualified digital signatures to be stored in an actual digital database has not yet been implemented. This means that the actual digital deed, as signed with a qualified electronic signature, is not possible. All this means that, to this day, it is not yet possible to sign authentic acts electronically, which therefore appears to be a violation of the European Regulation now that the lack of a genuine digital platform obstructs the applicability of the European Regulation.

Registration of electronically signed rental contracts

A rental contract and/or location description can be sent for registration using the MyRent online application, but the digitally signed electronic rental contracts have to be accepted for registration. This online registration via MyRent is currently only possible for rental agreements. However, the rental contract does not only concern residential purposes, but can also involve commercial leases, non-habitation rental agreements, lease agreements, subletting and transfers of rent.

Conclusion

The Belgian government itself is still lagging in providing digital records databases, which is therefore impeding the digitisation of the main contracts in the real estate sector. Private contracts that do not require a registration at the mortgage reregister could be signed with the qualified electronic signature. The adaptation of the law of evidence on 1 November 2020 will therefore not be a definitive revolution for the digital real estate sector.

De Coninck law firm is a Belgian law firm, active in the real estate sector. If you would like more information about signing real estate contracts electronically, please contact jeroen@dc-advocaten.be and olivia@dc-advocaten.be. Thanks to Sara Vincke, law student.