Home>Levelset Community>Legal Help>In the Florida case Klein vs Phelps, it was ruled that a waiver needed to have an original signature. Is there a Florida case law after that ruling that an electronic waiver, such as through zlien, are legal and binding?
In the Florida case Klein vs Phelps, it was ruled that a waiver needed to have an original signature. Is there a Florida case law after that ruling that an electronic waiver, such as through zlien, are legal and binding?
I was asked by my Senior Project Manager to look into using Zlien as a possible program to track Notice to Owners and releases. I want to be sure before looking into it that an electronic signature is accepted as legal and binding in Florida.
1 reply
Jun 29, 2018
We're glad you're looking into zlien! After taking a look at Klein v. Phelps, I'm not as sure that was the ultimate ruling of the case. In Klein v. Phelps, a lien waiver was sent via fax and later determined to be a non-binding waiver, but the court did not rule that the waiver was non-binding because the waiver was sent electronically. Rather, the court found that the waiver was non-binding because neither the party submitting the waiver nor the party in receipt of the waiver believed the waiver to be binding (as a result of not having original signatures) and they acted accordingly. When the owner argued that they could rely on the faxed waiver, the court did determine that the faxed waiver was non-binding - but merely because in the cases the owner had relied on in support of their position, all of those parties relying on a waiver had actually made payment. The court made no mention of electronically exchanging waivers affecting the validity of the waiver. In fact, the court indicated that the waiver was valid with the following quote from the opinion: "Because neither Phelps nor Klein acted as if the faxed release of lien was binding, the parties' conduct did not contradict Morin's affidavit so as to create a genuine issue of material fact concerning their intent." The court makes no statement itself that the non-original signature left the waiver as non-binding. Instead, the court focuses in on the belief and intent of the parties. Had the waiver, in fact, been non-binding, the court would not have needed to look to the parties intent in the first place. Finally, nothing in the Florida lien statute indicates that original signature is required.