The FAQs being provided by NYSAR are based upon what we believe to be true through ongoing communications with various state agencies for prior to and including Phase 1 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.
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.
This FAQ was updated as of 10:00 am on 5/7/2020 and supersedes any prior information provided by NYSAR.
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.
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.
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.
Below, please find instructions on how to use the form
No. In-person showings are prohibited under the Executive Order and using the form does not change that.
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.
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.
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.
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.
No. The EO does not lift the restriction on in-person contact between licensees and members of the public.
No.
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.
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.
No, ESD has provided guidance that the inspector can perform the inspection but may only communicate with the purchaser virtually.
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.
Much has happened since March 7 when the COVID-19 related State of Emergency was issued, and throughout that time NYSAR has been actively representing us. Here is more detail.
3/7 Executive Order(EO) 202 declaring a disaster emergency for New York State
3/18 EO 202.6 requires non-essential businesses to reduce in-person workforce by 50% by March 20, 8:00pm
3/19 EO 202.7 requires non-essential businesses to reduce in-person workforce by 75% by March 21, 8:00pm
3/20 EO 202.8 requires non-essential businesses to reduce in-person workforce by 100% by March 22, 8:00pm
3/20 Governor Cuomo issues guidance on essential businesses within “New York State on Pause” EO. The essential business list does not include real estate services.
3/22 8:00 pm – all non-essential business, including real estate, must close in-office personnel functions
3/23 NYSAR & REBNY ask Governor Cuomo and Empire State Development (ESD) to include “real estate closings” and county clerks to be deemed essential
3/23 NYSAR asks Governor Cuomo and ESD to amend EO 202.6 to include “services related to real estate transactions” as essential
3/25 NYSAR and REBNY ask Governor Cuomo for clarity regarding permissible real estate activities
3/28 NYSAR receives copies of emails from licensees where ESD has deemed them “essential” with no limiting language
4/1 NYSAR receives copies of emails from licensees where ESD has deemed only certain functions of a licensee as essential
4/1 ESD changes previous guidance to only allow virtual showings and remote work
4/9 ESD published limited functions of a real estate brokerage that can be performed. In-person contact is still prohibited and licensees should perform all activities virtually or remotely.
No. Pursuant to the most recent guidance from the EDC, 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.
No. Pursuant to the most recent guidance from EDC, 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.
Yes, with the knowledge and informed consent of the seller.
Penalties can range from a fine of $2,000, being charged with a misdemeanor and possible license suspension or revocation.
Yes
Yes.
Yes, but licensees should try to minimize person to person contact by utilizing alternate means in granting access.
Yes, but licensees should try to minimize person to person contact by utilizing alternate means in granting access.
Yes. It should be noted that remote notarization is now 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.
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.
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:
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.
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.
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.”