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to be signed and delivered electronically. So what types of documents are excluded and should not be delivered electronically (unless followed up with originally signed copies being deliv- ered)? Agreements of purchase and sale, leases, offers to lease, options to purchase land, easements, and possibly other documents are all excluded, per- haps some of these are subject to certain exceptions which are beyond the scope of this short article. With respect to a lease, however, leases for a term of less than three years if the land is in the land titles system, or for a term of less than seven years if the land is in the registry system, are protected (they do not need registration to be effective against third parties) and so could be signed and delivered electronically. However, most leases are on lands in the land titles system and for a term of greater than three years, so most would be excluded and parties should, out of precaution, not rely on the act to enforce a lease delivered electronically. If the contract you are dealing with either does not create or transfer an interest in land — for example, a recipro- cal operating agreement or restrictive covenant agreement — or does not require registration to be effective against third parties, should you choose to deliver and accept a signed copy elec- tronically, ensure the documents being exchanged are delivered in a manner that can be stored for future access and that they cannot be altered. Canadian courts have not considered any cases yet regarding the enforceabil- ity or unenforceability of a document that was delivered electronically, con- trary to s. 31(1). It's worth noting, how- ever, that parties have been exchanging documents in the excluded category for a number of years, and the fact that the issue has not been considered by a Canadian court may be telling that parties are not seeking to argue non-en- forceability based on electronic delivery. This could mean society so generally accepts electronic delivery that the risk is quite low of having the other side make such an argument. The prudent practice, until a Canadian court endorses the enforceability of elec- tronic delivery of these types of docu- ments, is to execute and deliver original signature pages or signed copies when dealing with agreements of purchase and sale, leases, offers to lease, assign- ments of lease, easements, options to purchase land, and any other document that transfers an interest in land. If, for the sake of expedience, you exchange signed documents such as these by elec- tronic delivery, it would be appropriate to follow up with the exchange of ori- ginally signed copies. IH Sonja K. Homenuck and Timothy Banks are partners at Fraser Milner Casgrain LLP, and Greg Barker is an associate at the same firm. This article is a summary of a paper prepared for and delivered at the 2010 Law Society of Upper Canada Six-Minute Commercial Leasing Lawyer conference in Toronto. [Across the street, down the block or Canada wide — our commercial team is ready for you. ] For over 100 years, legal professionals have trusted Stewart Title to provide title insurance for their commercial real estate transactions. Some of the world's best hotels, golf courses, resorts, office towers and business centres are insured by Stewart Title. Our global reach and financial strength, combined with the expertise of our Commercial Team, enable us to handle the most complex transactions. With Stewart Title, you can close real estate transactions with security and peace of mind. Visit www.stewart.ca to view some of our recent transactions, or call us at 1-888-667-5151 for a quotation. Untitled-3 1 INHOUSE OCTOBER 2010 • 4/30/10 12:51:05 PM 13