INTRODUCTION
The execution of deeds in South Australia has consistently been an area of uncertainty due to an absence of legislation expressly permitting or prohibiting electronic execution.
On 15 January 2026, a significant change to the execution requirements under the Law of Property Act 1936 (SA) (the Act) was introduced.
The Statutes Amendment (Planning, Infrastructure and Other Matters) Bill 2025 (SA) (the Bill) amends the Act to enable modern methods of execution for deeds (i.e. electronic signing rather than “wet ink”).
The Department for Housing and Urban Development has indicated that these changes could reduce execution timelines to a matter of minutes (rather than several days), representing a significant opportunity, and potential advantage, for the industry and home builders alike.
This article only applies to amendments made to the Law of Property Act 1936 (SA) by the Statutes Amendment (Planning, Infrastructure and Other Matters) Bill 2025 and the Statutes Amendment (Planning, Infrastructure and Other Matters) Act 2025
MAIN LEGISLATIVE CHANGES
Section 5 of the Bill amends section 41 of the Act, which outlines the requirements for the execution and attestation of deeds in South Australia.
The new legislative framework states that a deed may be executed on behalf of a party to the deed by the signature of a person with express or implied authority to execute documents for and on behalf of the party, or if the party is a natural person, by a person acting at the direction, and in the presence, of the party.
Most importantly, s 41(1)(d) of the Act is inserted to state: “a person may sign, seal or execute a deed by signing, sealing or executing an electronic form of the deed using electronic means”.
It is important to note that this amendment does not remove the requirement for an execution of a deed to be witnessed by at least one witness who must not be a party to the deed.
KEY TAKEAWAYS
1. Practical Implications of Electronic Execution: In South Australia, parties may now arrange for the execution of deeds to be signed electronically (including through platforms such as DocuSign).
The Act has been amended to facilitate the modernisation of execution practices for deeds in South Australia, allowing electronic signing rather than the traditional wet ink requirement. The intended purpose of these amendments is to create a significant reduction in processing and administration time, enabling dealings to be finalised in a matter of minutes, as opposed to days.
2. Witnessing Requirements: Whilst the Act now permits electronic execution of deeds by an individual, section 41(2) of the Act still requires the execution of a deed by a natural person to be witnessed by at least one witness who is not a party to the deed (who must be physically present at the time the deed is executed).
The position the Courts will take regarding the interpretation of witnessing requirements when completing electronic execution in South Australia is still largely unclear. Despite the insertion of the new section 41(1)(d) of the Act, there is no certainty as to whether the witnessing requirement can be satisfied by using a signing platform (e.g. using the DocuSign witnessing function).
The Law Society of South Australia has previously outlined that the position likely “remains that witnesses must be physically present to certify that the document was signed by the signatory. For individuals, the validity of witnessing of electronic signatures is a somewhat grey area, but may be possible where the witness is physically present, sees the signatory affix their electronic signature to the deed and then affixes their own electronic signature to the same version of the document at the same time.”
3. Recommendations: If you intend to sign a deed electronically in South Australia, we recommend that you consider the following points:
- Ensure that both parties consent to the use of electronic communication and execution. This can be achieved by including an appropriate counterparties clause in the deed.
- Use a signing platform with identification and verification requirements (i.e. DocuSign) when signing electronically, instead of merely inserting a copy of your signature. We refer to our previous legal alert The Corporations Act finally steps into the 21st Century for more information.
- To be safe, ensure the witness is physically present when the deed is executed by the relevant party.
- Seek appropriate legal advice for drafting and execution of the deed.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.
