Electronic signatures in real estate documents in Germany

Electronic signatures may be used for any documents that do not require written form or a stricter form by law or by contract. This includes:

• Leases for a term of less than one year;
• Variations to leases;
• Licences for alterations, underlettings and assignments;
• Letters of intent;
• Handover protocols;
• Side letters;
• Non-disclosure agreements; and
• Exclusivity agreements.

Leases for a term of more than one year need to be in a written form and to satisfy the written form requirement the only valid electronic signature is a “Qualified Electronic Signature” (see legal requirements section). However, see the issue with leases for a term of more than one year in the “other factors” section.

Where a stricter form than a written form is required by law or contract, a simple electronic signature is not valid.

Therefore, the following documents cannot use electronic signatures:

• Sale contracts;
• Transfer agreements regarding rights in rem, e.g. co-ownership units or ground leases;
• Easements and charges to be registered in the German land register; and
• Guarantees or surety.

The requirements for a Qualified Electronic Signature result from Regulation  (EU No 910/2014 (“eIDAS”) and the German law adopted for its local application (Vertrauensdienstegesetz).

One important requirement is the specific certificate which can only be issued by qualified trust service providers regulated by the Federal Network Agency (Bundesnetzagentur).

Regarding other electronic signatures, there are no specific legal requirements to the extent the electronic signature provides sufficient proof for the will of the signatory.

No.

The following issues could prevent a document being entered into in electronic format:

• where the contracting parties themselves have agreed on a stricter form than written form (e.g. notarial recording);
• if the document has to be treated as executed in a foreign jurisdiction. It may be preferred to have physical signing in the event that the place or location of the signature has particular legal consequences;
• the originals of leases with a term of more than one year must be reviewed upon any transfer of the lease. There is not yet a developed practice in Germany to deal with this as the reviewer would need to have access to the relevant service provider who facilitated the original Qualified Electronic Signature.