Signing a rental agreement online or by mail – is this possible and legally valid?
For tenants but also landlords, the signing of a contract online has theoretically many advantages, because both sides can save a lot of time and costs.
The good news: It is possible! However there remain a few caveats which we summarize for you here in brief.
Rental contracts and freedom of contract
In Germany and Switzerland, there is a basic principle known as freedom of contract. This means that people are completely free to determine the form of contracts themselves.
Among other things, this also applies to the medium of the contract, which is why even a verbal agreement can be regarded as the conclusion of a contract – although the provability of this often poses problems.
There are, however, exceptions to the freedom of contract. For certain contracts, there is a clearly defined formal requirement. Compliance with this requirement is mandatory for legal validity.
There are no such formal requirements for rental agreements in Switzerland. This means that a contract can be concluded online via email for example. In Germany, this is also possible, but there are caveats.
In Germany it depends on the type of rental agreement
There is no formal requirement in Germany for unlimited rental agreements with a constant rent and no minimum rental period,so that such an agreement can be concluded informally online via email, WhatsApp or even verbally – unless the written form is explicitly agreed (which is at the discretion of the contracting parties).
However, if the rental agreement is limited in time, if a minimum rental period of at least one year is agreed, or if the rent is subject to change, a formalized written rental contract is obligatory. Merely agreeing to the terms or a written form in a mail or a chat ist not enough for legal validity.
A scanned contract is NOT sufficient for a formal requirement
It is also not sufficient to return a signed contract as a scan. This is because both parties to the contract must sign a single contract document, which means that the original signature of both parties must be present on the contract document.
This can be achieved by printing out two versions, one of which is first sent to the tenant and one to the landlord, and then sending the original to the other party respectively.
Caution: Separate formal requirements apply to the notice of termination
Unlike the lease, the notice of termination for a residential property is always bound to the written form both in Germany and in Switzerland. Only in the case of commercial rental properties, there is no formal requirement in Germany, whereas in Switzerland there is.
In addition, formal requirements also exist for other aspects that are closely related to leasing, such as in Germany for significant changes to fixed-term leases or the exercise of a statutory tenant’s right of first refusal.
The solution: electronic signatures are legally valid in all cases
Do all these different regulations and special cases seem confusing to you? Fortunately, there is a solution that simplifies everything and saves you time and money to boot: electronic signatures.
Thanks to framework regulations such as eIDAS in the EU and ZertES in Switzerland, electronic signatures are now equivalent to handwritten signatures in most countries around the world and are fully legally valid.
In cases where there is a formal requirement, you only need to use a so-called Qualified Electronic Signature (QES), for which all signatories are identified beyond doubt via a legally prescribed system. In other cases, a Simple Electronic Signature (EES or SES) is sufficient, in which only the email address is used for verification.
A much more secure alternative to the SES is the Professional eSignature (PES) by Certifaction, which also securely identifies all signatories – but much faster and cheaper than a QES.
Learn more about signing rental contracts digitally in the linked blog article.
How can a lease be signed online?
The fastest, safest, and cheapest way to sign a lease online is with the help of an electronic signature, such as Certifaction offers specifically for the real estate industry.
This means you can completely eliminate the need to print out, scan, or send documents by mail, because the rental agreement is legally signed completely online in the digital world with an electronic signature.
All that is required is to upload the lease to the app and invite the signers to sign it. With a PES or QES, all signers must also identify themselves, which is done online within a few minutes, and sign. Done!
Afterwards, you can print out the rental agreement as a digital twin; an attached QR code allows you to verify it beyond doubt even when printed.
All steps describing the digital signing of contracts with Certifaction can be found additionally in the linked article.
DISCLAIMER: The information on this site is for general information purposes only and is not intended to serve as legal advice. Should you have specific legal questions, you should consult with a licensed attorney in your area.