Importance of Having a Witness to a Purchase Contract

With technology today, many offers to purchase are sometimes faxed or emailed to the buyer or seller for signature. Regardless of the method of delivery, the doc must be hand signed before it is returned.

As well, it’s important that the buyer or seller’s signature is witnessed. The person witnessing the signature must be present to actually observe the signing. Someone signing as a witness when in fact they did not personally observe the signing amounts to unethical practice and misrepresentation. Signing in the presence of a witness confirms that the person signing is the actual buyer or seller.

Is a Witness Required?

Though witnessing a signature is a best practice, real estate docs do not legally require a witness. It can, however, avoid potential issues down the road. The area for signing an Agreement of Purchase & Sales usually says:

“Signed, Sealed and Delivered in the Presence of:

…………………………………………………………………
(Witness)”

It also states, “IN WITNESS whereof I have hereunto set my hand and seal.”  

.............................................................                    DATE……………                                
(Buyer/Seller)                                         (Seal)

The reference to a seal and the diagram of a seal clarify that the contracting parties are signing something of worth to each other. The seal is regarded as a substitute for valuable consideration and binds each contracting party to be legally liable if they don’t live up to the promises made in the agreement.

So Why is a Witness Important?

  • Having a witness avoids a challenge to a signature’s authenticity; and if an argument occurs, the eye-witness can attest to the authenticity of the signature.
  • According to Centum Omni Mortgage Corp., more and more lenders, due to concerns about forgery, are not willing to finance a purchase without signatures being witnessed.
  • If it becomes a legal dispute, the person whose signature is represented must prove that he did not in fact sign.

What Can Be Done?

  • If practical, the REALTOR® can be present to explain the terms of the contract and witness the signature(s).
  • The REALTOR®, when possible, should instruct the buyer or seller to have a person present to sign as a witness and should walk them through the process over the phone in real time.
  • As anyone can be present to witness a signature, it’s not a difficult task, provided the witness is not a party to the contract or a close family member.

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