Electronic is permitted, never mandatory
The federal E-SIGN Act, 15 U.S.C. 7001(a), provides that a signature, contract or record may not be denied legal effect, validity, or enforceability solely because it is in electronic form. Read that carefully: it is a permission, not a requirement. The trap is the answer that reverses it into a mandate that every real estate contract must be signed electronically.
Two more limits. E-signature validity is not the same as recording — an e-signed deed still must be recorded to protect title. And 15 U.S.C. 7003 expressly excludes wills, codicils and testamentary trusts, so electronic wills are not validated nationwide.
What E-SIGN leaves out
15 U.S.C. 7003 lists the exceptions. The one that shows up in real estate questions: notices of default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by — or a rental agreement for — an individual's primary residence. Those may not be delivered electronically under E-SIGN.
The full exceptions list also covers wills, family law matters, most UCC transactions, court orders, utility cancellations, insurance cancellations, recalls and hazardous materials documents.
By contrast, ordinary communications between the parties to a deal are squarely validated in electronic form: a counteroffer on a residential purchase agreement, a request to extend the due diligence period, and an amendment to the sales price are all fine electronically under both E-SIGN and Georgia's UETA.
Georgia UETA needs agreement
Georgia rule. O.C.G.A. 10-12-5 applies UETA only to transactions between parties each of which has agreed to conduct transactions by electronic means. Agreement is determined from the context and surrounding circumstances, including the parties' conduct, and a party may refuse to conduct other transactions electronically.
So one party's preference for electronic documents is not agreement. UETA is not limited to transactions involving a licensed broker — that condition is invented. And it does not apply to every transaction without exception, because both the agreement requirement and the statutory exclusions for wills and most UCC transactions stand.