It’s The Law – Can notices be emailed?

Most of us have grown to rely heavily on emails to notify, inform and keep informed. But, has the law caught up with this reality?

WHEN I WAS growing up, the most technologically advanced item we had was the game “Pong” on the TV. When I started practicing law, the most technologically advanced item the office had was a fax machine, with thin waxy paper!

Life used to be simple. Letters were typed on typewriters. Mistakes were wiped out with whiteout. If someone had to sign something, it was signed in person. Computers were something in a large storage room, not on every desk (those were still being invented in someone’s garage).

Who would have thought that someday we could send a document across the state (even across the world!) without ever leaving the office? Who would have thought you could rent an apartment without leaving your living room?

Welcome to the 21st century!

Most of us have grown to rely heavily on emails to notify, inform and keep informed. But, has the law caught up with this reality?

How are electronic leases valid? Do emailed notices have any legal effect?

Let’s take a look at how the law treats electronic leases and notices.

Execution of the lease electronically.

Pursuant to the Uniform Electronic Transactions Act, a record or signature may not be denied legal effect or enforceability solely because it is in electronic form. A contract may not be denied legal effect or enforceability because an electronic record was used in its formation.

If a law requires a record to be in writing, an electronic record satisfies the law. If a law requires a signature, an electronic signature satisfies the law.

Notices sent via email.

The Act provides that if parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send or deliver information in writing to another person, the requirement is satisfied. In an electronic record capable of retention by the recipient at the time of receipt.

Consequentially, if the law requires written notice to be made and the parties have agreed to conduct their transaction by electronic means, the written requirement is satisfied if the information is provided by email.

Pursuant to section 21.1 of the new TAA lease form, notice may be given electronically by the owner to the resident if allowed by law. If allowed by law and in accordance with the owner’s community policies, an electronic notice from the resident to the owner must be sent to the email address or portal specified in the community policies. The residents represent that they have provided their current email address to the owner and will notify the owner in the event the resident’s email address changes.

Based upon the Uniform Electronic Transactions Act and the lease, notices can be given electronically by the owner to the resident if allowed by law and if allowed by law and in accordance with the community policies, and electronic notice from the resident to the owner is allowed if sent to the email address or portal specified in the community policies. If you want to restrict emailed notices from the resident, any restrictions should be added to the community policies.

Are there notices that cannot be sent via email?

Pursuant to the Uniform Electronic Transactions Act, if a law requires a record (i) to be posted or displayed in a certain manner, (ii) to be sent, communicated, or transmitted by a specified method, or (iii) to contain information that is formatted in a certain manner, the following rules apply:

1. The record must be posted or displayed in the manner specified in the law;

2. With certain limited exceptions, the record must be sent, communicated, or transmitted by the methods specified in the other law; and

3. The record must contain the information formatted in the manner specified in the other law.

An emailed notice to vacate would not have legal effect. Sections 24.005(f) and (f-1) provide that notices to vacate must be delivered in a specified manner. None of the methods by which a notice to vacate can be sent include electronically mailing the notice. Since the Property Code requires that the notice to vacate be sent in a certain specified method, the Uniform Electronic Transactions Act will not support the emailing of a notice to vacate. Even though other notices may be sent electronically, the notice to vacate must be sent in accordance with the requirements of the Property Code.

If allowed by your community policies, most repair notices can be emailed, with one exception. Section 92.056 of the Texas Property Code provides that an owner is liable to a resident if:

1. The resident has given the owner notice to repair or remedy a condition;

2. The condition materially affects the physical health or safety of an ordinary resident;

3. The resident has given the owner a subsequent written notice to repair or remedy the condition; however, if the resident has given the first notice by sending that notice by certified mail, return receipt requested, by registered mail, or by another form of mail that allows tracking of delivery from the United States Postal Service or a private delivery service;

4. The owner has had a reasonable time to repair or remedy the condition after the owner received the resident’s notice or notices;

5. The owner has not made a diligent effort to repair or remedy the condition after the owner received the resident’s notice or notices; and

6. The resident was not delinquent in paying the rent at any time any notice required by this section is given.

The resident has certain remedies if an owner violates the obligation to repair or remedy conditions in the unit, as long as the resident has followed the guidelines of this statute. The resident’s remedies include terminating the lease, having the condition repaired or remedied, deducting the cost of the remedy from the resident’s rent and obtaining certain judicial remedies.

Based upon the language of the statute, if allowed by the lease and community policies, the notice to repair or remedy would trigger the owner’s obligations under the statute even if the notice was emailed. However, if the resident only gives one notice that must be sent via certified mail or another form of mail that allows tracking of delivery from the United States Postal Service or a private delivery service, it would appear that that notice could not be delivered via email since the statute requires a specified manner of delivery.

As the law catches up with the 21st century, we may see statutory changes that allow for emailed notices including emailing a notice to vacate. Until then, it is important that you remain aware of the ramifications of the lease provisions and your community policies and the legal effect of notices depending on requirements with respect to how notices must be sent.

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