Electronic signatures in a property purchase and sale agreement
The property purchase and sale contract is the instrument used to formalize the seller's intention to transfer a property to the buyer. But the mere signing of the contract, by itself, does not transfer ownership, since the document only creates the obligation to transfer the property between the parties. For this, in fact, to happen, it is necessary that the contract be duly registered with the competent Real Estate Registry Office.
With the spread of the internet and the advent of the pandemic caused by COVID-19, many businesses began to be celebrated virtually, with the use of electronic signatures. With real estate purchase and sale contracts, this practice was no different. With legal validity, digital contracts are totally secure and accepted by the Notary Office at the time of their registration.
However, like physical signatures, which must be recognized at a Notary Office, Brazilian law provides specific requirements for electronic signature of the property purchase and sale contract.
And what are those requirements?
Law 14,063 of 2020 regulated the use of electronic signatures in interactions with public entities and classified electronic signatures into three types, depending on the method used to authenticate the person who is signing the document (the signer), these are:
A qualified electronic signature is the one carried out by means of a Digital Certificate issued by a certification authority accredited by ICP-Brazil*. Digital Certificates function as an electronic identity whose main function is to prove the citizen's identity in electronic media and to provide electronic signatures for documents and transactions.
*ICP-Brazil is the Brazilian Public Key Infrastructure, which represents the country's digital certification system and enables the issuance of digital certificates used for the virtual identification of citizens. These certificates can be purchased through a Certification Authority, that is, an issuer of digital certificates.
Already the advanced electronic signature It is one that uses other means of authenticating a signer and that make it possible, with high security, to prove the authorship and integrity of the signed document.
Finally, the simple electronic signature, which, as its name says, offers simpler forms of authenticating the signer. Very convenient, it is used to celebrate low-risk documents or in the case of interactions with government entities that do not involve sensitive information.
Well, that same law, in its article 5, paragraph 2, paragraph IV, established the mandatory use of qualified electronic signature to formalize the acts of transfer and registration of immovable property.
In this context, real estate registry offices began to require that digital property purchase and sale contracts be signed with a qualified electronic signature, for the proper receipt of the registration.
But currently there is already an exception.
On February 14, 2023, Provisional Measure No. 1,162 was published, which provides for the My House, My Life Program, with the objective of expanding the offer and promoting the improvement of existing housing for the low-income population and supporting the development and strengthening of the activities of public and private agents responsible for promoting the Program.
This standard included article 17-A in Law No. 14,063/2020, providing that
“Financial institutions that operate with real estate loans authorized to enter into private instruments with the character of public deeds and the participants in the corresponding contracts may make use of electronic signatures in the advanced and qualified modalities referred to in this Law.”
In other words, the standard provided for the possibility of using advanced electronic signatures in private instruments for the purchase and sale of real estate with the character of a public title.
The Provisional Measure represents a major step forward and a benefit to Brazilian citizens by allowing the use of advanced electronic signatures in these contracts. This is because the advanced electronic signature is more convenient and cheaper than the qualified signature, since to carry it out, it is enough to have internet access and an electronic signature platform, such as Clicksign, and it is possible to carry out the process through a cell phone, microcomputer or tablet, without the need to purchase a Digital Certificate.
In addition, the advanced electronic signature is as secure as the qualified electronic signature, since it uses refined authentication methods commonly used to carry out sensitive transactions, such as the PIX, and Facial Biometry.
The Provisional Measure represents an important instrument for the digital inclusion of citizens, facilitating and simplifying the practice of acts such as transfers and registrations of real estate.
Currently, according to dice provided by the National Institute of Information Technology (“ITI”), there are 11,914,160 (eleven million, nine hundred and fourteen thousand and one hundred and sixty-one) of ICP-Brazil Digital Certificates active in Brazil.
However, even analyzing the data provided by the ITI, it is possible to observe that the Digital Certificates of individuals represent 48.4% (forty-eight point four percent) of all active certificates:
That is, in approximate numbers, only 5.766,453 (five million, seven hundred and sixty-six thousand and four hundred and fifty-three) individuals have an active Digital Certificate in Brazil.
Therefore, by providing for the possibility of using advanced electronic signatures in private instruments for buying and selling real estate as a public title, the Brazilian population's access to digital services in the Brazilian real estate registry environment may be significantly expanded, since the use of Digital Certificates is restricted to 2.7% (two point seven percent) of the total Brazilian population (considering the estimate provided by the Brazilian Institute of Geography and Statistics the data - IBGE).
However, it is important to emphasize that, if the Provisional Measure is not converted into law and loses its effects, the requirement to use qualified electronic signatures for any act of transfer and registration of immovable property will remain in force.
Do electronic signatures made on Clicksign comply with the requirements set out in the legislation?
Yes! Clicksign provides its users with the possibility of making any type of electronic signature (simple, advanced and qualified) on any document through its Platform.
In this sense, property purchase and sale contracts that will be submitted for registration with the Real Estate Registry Offices may be signed through the Clicksign Platform using the signators' ICP-Brazil Digital Certificates.
See how to make a qualified electronic signature on the Clicksign Platform
At the same time, financing contracts with public deeds concluded with financial institutions may also be signed with advanced signatures. The Platform user simply has to select authentication methods such as PIX, Facial Biometrics, Selfie with Document and even a combination of several methods.
It should be noted that, if it is necessary to submit an electronic contract containing signatures qualified for verification by a public body - such as a Real Estate Registry Office - it will be necessary to share a file called PAdES, which is automatically generated by the Clicksign Platform every time a document has electronic signatures authenticated with a Digital Certificate. PAdES is a digital signature standard for PDF and uses cryptographic public keys to protect document integrity.
See how to obtain the PAdES file on the Clicksign Platform
Are you interested in the subject of electronic signatures and want to know more? Clicksign prepared complete material regarding the electronic signature, its legal validity, how to use it, and how to verify the security and integrity of the documents signed on the Platform. checkout!
