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Frequently Asked Questions – Phase 2 Regional Re-opening

The FAQs being provided by NYSAR are based upon what we believe to be true through ongoing communications with various state agencies for Phase 2 of “New York Forward.” NYSAR’s role is to provide information in the best interest of all of our members in every part of New York, and where state guidance is unclear we offer the narrowest possible interpretation so as not to expose members to potential liability, as well as preventing the spread of COVID-19.

For a .pdf version of the NYSAR COVID-19 Disclosure form, click here.

For a word version of the NYSAR COVID-19 Disclosure form, click here.

 

This FAQ was updated as of 2:00 pm on 6/30/2020 and supersedes any prior information provided by NYSAR.

 

Does the governor’s travel advisory apply to clients or customers that enter NY from one of the “impacted jurisdictions”? (added 6/30/20)

Yes.  Real estate licensees should not conduct showings where any party entered New York after 12:01a.m. on June 25, 2020 from one of the “impacted jurisdictions.”  This includes not only buyers/tenants but also sellers or occupants of seller’s property that will be shown.   Please take note that “impacted jurisdictions” may change depending on the severity of COVID-19 related cases in the “impacted jurisdiction.”

NYSAR strongly recommends that as part of a screening process, licensees should inquire if their client/customer has entered NY from another state on or after 12:01 a.m., June 25, 2020.  The licensee should be aware of those “impacted jurisdictions” on the DOH website provided above.  If the individual is from an “impacted jurisdiction,” the showing should not occur pursuant to the quarantine protocols.

It is likely that any real estate licensee that knowingly conducts a showing contrary to the guidance contained in this document may be exposing themselves to various actions (legal, DOH discipline etc.) as well as exposing themselves and others to potential COVID-19 exposure.

Licensees should inquire with their broker as to how such screening should be implemented.

Here is the link to the DOH website showing the “impacted jurisdictions”: https://coronavirus.health.ny.gov/covid-19-travel-advisory

 

Does any guidance change when a region enters Phase 3 or Phase 4? (added 6/12/20)

No, the Phase 2 guidelines remain in effect until further notice from the State.

Is there a screening questionnaire provided by Empire State Development (ESD) or the NYS Dept. of Health (DOH)? (added 6/2/20)

No.  There are two different scenarios that require a screening questionnaire under the DOH Interim Guidance Document, one for employers and one for property showings.  The broker/employer is free to add other questions after consulting with legal counsel.  The broker should screen all parties prior to a showing and encourage the seller, buyer, landlord, tenant to answer the questions.   Licensees are only required to answer the questionnaire provided by their broker/employer (the Interim Guidance Document defines “employees” and “employee” as including real estate licensees that are independent contractors).  The screening can be done remotely (telephone, electronic survey, email etc.).  For both types of screening questionnaires, NYSAR strongly recommends remote screening as this may eliminate in-person contact in the event a person states they were exposed to COVID-19.  If remote screening is not possible, then a form should be used containing the same questions.  Below, please find the minimum screening requirements for broker/employer and property showings:

For employers, real estate offices etc. the independent contractor/employee/visitor questionnaire should identify the employer (or broker for independent contractors) the name of the independent contractor/employee/visitor, signature line and the date.  At a minimum, the individual must answer the following questions:

  • (a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has or had symptoms of COVID-19,
  • (b) tested positive for COVID-19 in the past 14 days, or
  • (c) has experienced any symptoms of COVID-19 in the past 14 days.

For the purposes of a showing, the screening questionnaire should contain the following questions:

  • (a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has or had symptoms of COVID-19,
  • (b) tested positive for COVID-19 in the past 14 days, or
  • (c) has experienced any symptoms of COVID-19 in the past 14 days.
  • (d) Require seller/lessor to disclose if they become symptomatic and/or they test positive for COVID-19 within 48 hours of the last visit to their property.
  • (e) Require buyer/lessee to disclose if they become symptomatic and/or they test positive for COVID-19 within 48 hours of the last visit to a property.

What regions and counties are currently open to limited real estate activities under Phase 2?

The current regions and counties in Phase 2 are:

  • North Country (Clinton, Essex, Franklin, Hamilton, Jefferson, Lewis, St. Lawrence),
  • Mohawk Valley (Fulton, Herkimer, Montgomery, Oneida, Otsego, Schoharie),
  • Central NY (Cayuga, Cortland, Madison, Onondaga, Oswego),
  • Finger Lakes (Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates)
  • Southern Tier (Broome, Chemung, Chenango, Delaware, Schuyler, Steuben, Tioga, Tompkins).
  • Western NY (Allegany, Cattaraugus, Chautauqua, Erie, Niagara)
  • Capital Region (Albany, Columbia, Greene, Saratoga, Schenectady, Rensselaer, Warren, Washington)
  • Mid-Hudson (Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, Westchester)
  • Long Island (Nassau, Suffolk)
  • New York City (Bronx, Kings, New York, Richmond, Queens)

Where can I find the requirements for in-person showings and open houses?

The requirements for conducting in-person showings and open houses in regions that have reached Phase 2 can be found in section I(D) of the Guidance Document.

My office is in a Phase 2 region but I have a listing in a region that is Phase 1. Can I do limited in-person showings in the Phase 1 region because my license is listed in a Phase 2 region?

No. Limited in-person real estate activity can only occur in regions that have reached Phase 2.

My office is in a Phase 1 region but I have a listing in a region that is Phase 2. Can I do limited in-person showings in the Phase 2 region because my license is listed in a Phase 1 region?

Yes.  A real estate license is a statewide license and allows you to do permitted activity in any Phase 2 region.

Can a professional photographer and/or videographer take photos or video of a property under Phase 2?

Yes, if the photographer/videographer is operating in a region open under Phase 2.

How do I use the NYSAR COVID-19 Disclosure form?

Below, please find instructions on how to use the Phase 2 form:

  • The form is OPTIONAL
  • You must have the permission of your broker before utilizing the form.  Your broker may require you to either: a) use the NYSAR form; b) use a form the broker had prepared; or c) not use any form.
  • The form has been provided to local boards, MLS’ and brokers previously and they may have released the form already with their name and/or logo.
  • Licensees should present the form to the seller or buyer in the same manner an agency disclosure form is presented.
  • The COVID-19 Disclosure form notifies the seller and buyer of the risks associated with permitting an individual to enter the property or by entering another individual’s property.
  • By signing the form, the seller or buyer acknowledge that by permitting such access or by accessing the property they assume the risk of potential exposure to COVID-19.  Licensees should explain to the seller and/or buyer that the form outlines the risks of COVID-19 exposure and by signing the form they are acknowledging and assuming such risks.
  • Licensees should have the seller and/or buyer sign the form, print their name next to their signature and provide a signed copy to the seller or buyer and retain a signed copy for the brokers file.
  • The form may be delivered in any manner currently permitted (paper, electronic transmission).
  • A copy of the COVID-19 Disclosure form can be found HERE.
  • A Word copy of the COVID-19 Disclosure form with a co-branding area can be downloaded HERE.

If I use the NYSAR COVID-19 Disclosure form can I perform in-person showings in a Phase 2 region?

Yes, so long as all requirements contained in the Interim Guidance Document are strictly followed.

What is the seller and/or buyer agreeing to when they sign the NYSAR COVID-19 Disclosure form?

In the event the seller and/or buyer is exposed to COVID-19 as a result of permitting or gaining access to the property, the form acts as a disclosure notice outlining the risks and having the party acknowledge that they are assuming such risk through their actions.  If a licensee and/or broker were named in a lawsuit alleging exposure to COVID-19 by the seller and/or buyer (or a member of their household), the form could be used to show the seller and/or buyer were aware of the risks and assumed the risk of permitting access or gaining access to the property.

What if the seller and/or buyer refuse to sign the COVID-19 Disclosure form?

Licensees should follow the same procedure when a consumer refuses to sign an agency disclosure form.  If the seller and/or buyer refuse to sign the form, the agent shall set forth a written declaration of the facts of the refusal and shall maintain a copy for the broker’s file.

If a buyer/tenant refuses to sign the COVID-19 Disclosure form or answer the screening questions, can the seller/landlord refuse to show the property to that party?

Yes, the seller/landlord can require compliance with both the COVID-19 Disclosure Form as a prerequisite before the showing.  Consumers are not required to sign the COVID-19 Disclosure form or answer the screening questions and if all parties are comfortable with that, a showing may occur.

If a seller/buyer/landlord/tenant answers yes to any of the screening questions, what should I do?

If a seller/buyer/landlord/tenant answers yes to any question, it would be up to the parties as to whether they want to continue with the in-person showing assessing what risks they may be taking.  For instance, a buyer is a health care worker and is exposed to COVID-19 as a result of their occupation.  That would not disqualify them from the in-person showing if the seller is comfortable with the precautions being taken.  If they are not comfortable, a licensee would not be required to conduct an in-person showing if any of the questions were answered “yes”.  This would be a scenario where it would be prudent to utilize the COVID-19 Disclosure Form.

Can a licensee perform an in-person open house in a region open under Phase 2?

Yes, however the Interim Guidance Document only permits one party to be in the property at a time.  As a best practice, licensees should schedule appointments for an open house in order to avoid having multiple parties present at the property and congregating outside waiting to see the property.

Can I have in-person contact with a member of the public in a region open under Phase 2?

Yes.  The Interim Guidance Document permits in-person contact with a member of the public so long as required health and safety measures set forth in the document are followed.

Can the purchaser be present during the inspection?

That would be up to the inspector and their interpretation of the Interim Guidance Document.

Can I conduct a final walkthrough with a consumer in a region open under Phase 2?

Yes, so long as all requirements for a showing contained in the Interim Guidance Document are strictly followed.

Can a licensee perform in-person showings in a region open under Phase 2?

Yes, so long as all requirements contained in the Interim Guidance Document are strictly followed.

Can I attend a closing in a region open under Phase 2?

Licensees should not be attending closings in-person.