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Frequently Asked Questions – Real Estate Guidance in Red Zone Hot Spots

The FAQs being provided by NYSAR are based upon what we believe to be true through ongoing communications with various state agencies. 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.

A broker may always consult their own attorney for an opinion. Regardless of what activity real estate licensees undertake under the current state guidance, in-person contact with any member of the public is prohibited. Any broker claiming that in-person contact is “legally necessary” should only do so under the advice of their attorney.

For guidance for determining whether a business enterprise is subject to a workforce reduction under executive order 202.68, related to New York’s Cluster Action Initiative to Address COVID-19 Hot Spots, click here.

 

What guidance is in place for performing real estate activity inside a Red Zone?

According to the ESD:

  • “Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).”

This FAQ contains information on complying with the guidance issued by ESD.

Can I have in-person contact with a member of the public?

No.  ESD has issued guidance that “real estate services shall be conducted remotely for all transactions”.  Licensees must utilize alternative methods of conducting business to avoid person to person contact with members of the public.  NYSAR is unaware of any scenario where a licensee would be “legally necessary” to have in-person contact.

Can licensees still take a listing?

Yes. ESD has issued guidance that that “real estate services shall be conducted remotely for all transactions”.  Licensees must make every effort and explore every alternative to avoid person to person contact with members of the public.  This can be done a number of ways including utilizing alternate means such as virtual listing appointments, electronic transmission and signing of documents.  A licensee may also mail or use a courier (UPS, FedEx, DHL) to deliver documents to a consumer to sign.

Can a licensee perform in-person showings?

No.  Pursuant to the most recent guidance from ESD, all showings must be done “virtually” by the licensee.  When such “virtual” showings occur, the seller should leave the property so as to avoid person to person contact with the licensee.

Are we allowed to do a virtual showing?

Yes, with the knowledge and informed consent of the seller.

Are we allowed to list properties and post them as “unaccompanied showings only”?

NYSAR recommends that licensees should not be involved in coordinating an unaccompanied showing.   If the seller demands that buyer’s be permitted to view the property the licensee should not be involved in the process.  If the seller instructs the listing agent to provide their contact information to the buyer, then the listing agent should do so.  This should be the only activity the listing agent performs.  The listing agent should not be coordinating anything between the seller and buyer except for providing contact information.

The guidance from ESD only applies to businesses and nothing prevents members of the public from having in person contact so long as they maintain recommended health and safety measures. So nothing prevents a seller from permitting a buyer into their home as that is their choice much like they can under a FSBO or limited service listing.  Since such activities are permitted among members of the general public, a licensee providing the phone number is not acting contrary to the ESD guidance.  The licensee is merely following the direction of their principle under their fiduciary duties.  The licensee should advise the seller that all recommended health and safety procedures should be followed.

Can I go to a property where nobody is present (meaning if individuals reside there, everyone has left the property) to view it or take photographs for a listing?

Yes, with the knowledge and informed consent of the seller. In the event that an individual is still at the property upon arrival or arrives while the licensee is there, the licensee should cease taking photographs/video and leave the property.

Can a licensee travel to a property and unlock the door so a consumer may enter the property for an unaccompanied showing? What if the licensee unlocks the door and waits in the driveway or out in the road until the buyer leaves?

No, NYSAR does not recommend that a licensee travel to the property in order to permit access to a member of the public.  Any licensee choosing to travel to the property for this purpose is doing so at their own risk.

Can a licensee perform an in-person open house?

No.

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

If the photographer/videographer has received approval for real estate photography as an essential business from Empire State Development (ESD)  and provides a copy of such approval, the activity is permitted.  Such approvals are on a case-by-case basis and it is currently NYSAR’s understanding that photography/videography as a whole has not been deemed an essential business, only those individuals receiving the letter from ESD.

 

How does the COVID-19 pandemic impact Fair Housing? Can I ask a client/customer/consumer if they have been exposed to COVID-19?

The National Association of REALTORS® has published a guidance document discussing issues related to COVID-19 and Fair Housing. A copy of the document can be found HERE.

What kind of marketing can I do?

You may not make any unsolicited phone calls to a member of the public during a State of Emergency. General Business Law §399-z(5)(a) states “It shall be unlawful for any telemarketer doing business in this state to knowingly make an unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency or disaster emergency as described in sections twenty-four or twenty-eight of the executive law.” All other types of marketing such as mailers, billboards, social media, internet etc. are permitted. You may call a FSBO if you have an identifiable purchaser interested in the property.  You are prohibited from calling the FSBO to solicit the listing.  You may still perform business to business calls so long as you are calling the number provided as the business number.

Are appraisers deemed to be an essential business?

Yes

Are home inspectors deemed to be an essential business?

Yes.

Can I open the property for an appraiser?

Yes, but licensees should try to minimize person to person contact by utilizing alternate means in granting access.

Can I open the property for a home inspector?

Yes, but licensees should try to minimize person to person contact by utilizing alternate means in granting access.

Can the purchaser be present during the inspection?

No, ESD has provided guidance that the inspector can perform the inspection but may only communicate with the purchaser virtually.

Can I conduct a final walkthrough with the purchaser?

No.  Pursuant to the most recent guidance from the ESD, licensees are prohibited from going to a property with their client or customer.  NYSAR is recommending that the buyers and sellers speak with their attorneys about scheduling a final walkthrough without the licensee being physically present.  The licensee may communicate with their client or customer via phone or video conferencing during the final walkthrough.

Are closings permitted?

Yes.  It should be noted that remote notarization is permissible under the Governor’s Executive Order 202.7 and closings may be conducted virtually. It is the decision of the lender, seller’s attorney and buyer’s attorney as to whether a virtual closing and/or remote notarization or other methods are used to avoid person to person contact.

Can I attend a closing?

No, unless your presence is essential to the completion of the closing. In other words, if you are not physically there, the closing could not occur. If your presence is required, you should only be in the closing room for as long as you are required and then leave while taking all health and safety precautions recommended by the government.

What if my business is not essential, but a person must pick up the mail or perform a similar routine function each day?

The ESD has determined that a single person attending a non-essential closed business temporarily to perform a specific task is permitted so long as they will not be in contact with other people. Other employees or licensees are prohibited from going to the office.

Are property managers an essential business?

According to the guidance document, “Essential Services Necessary to Maintain the Safety, Sanitation and Essential Operations of Residences or Other Essential Businesses” are essential and include: building cleaners or janitors; general maintenance whether employed by the entity directly; and disinfection. The property manager should only staff the office with those employees necessary to perform those essential services while following all recommended health and safety precautions. Employees of the property manager should not be performing non-essential activities while in the office. According to the guidance document, “With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.”

How do I file a complaint against a broker or licensee that is violating the Governor’s Executive Order?

NYSAR has been contacted by its members inquiring how they can file a complaint if an individual licensee or brokerage is violating the Executive Order by continuing to perform licensed activities such as showings, open houses and other activities where they are involved in person-to-person contact. Licensees wishing to make such a complaint have three options set forth below:

  1. File a complaint with the Attorney General. The Attorney General has not provided a complaint form specific to the Executive Order. The Attorney General has provided a phone number and can be reached at (800) 771-7755 or you can contact the NYS COVID-19 hotline at (888) 364-3065.
  2. File a complaint with the Department of State. The complaint form for DOS can be found here: https://www.dos.ny.gov/licensing/complaint_links.html
  3. File a complaint pursuant to the NAR Code of Ethics if the licensee is a member of the REALTOR® organization. Complaints may be made against the licensee in the local REALTOR® board/association where such individual holds primary membership, secondary membership or participates in the local REALTOR® board/association owned or operated MLS. Complaints may only be made against individuals not against firms/brokerages. REALTOR® membership is held individually. The complainant could name the principal broker as well as the individual licensed with the broker.

Penalties for those found to have violated the Executive Order may include one or more of the following: $2,000 fine, charged with a criminal misdemeanor, suspension or revocation of license, fines or other disciplines as authorized if the REALTOR® is found in violation of one or more articles by a hearing panel under the Code of Ethics and Arbitration Manual.

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

Below, please find instructions on how to use the 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 form can be found HERE.

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

No.  In-person showings are prohibited under the Executive Order and using the form does not change that.

 

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.