Coronavirus: A Guide for REALTORS®

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued a Vaccine Emergency Temporary Standard (ETS) to establish COVID-19 vaccination, vaccination verification and workplace testing requirements for employers with over 100 employees. This ETS does not apply to independent contractors; however, brokerages and some employers may impose vaccine mandates and guidelines for independent contractors that are more restrictive than the ETS.

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Why is NAR issuing this guidance?

In response to concerns about COVID-19, commonly referred to as coronavirus, NAR is providing this guidance to help REALTORS® respond to the coronavirus's impact on the real estate industry. Although much of the country is in a recovery and reopening phase, the situation continues to evolve, so be sure to refer to the CDC's website for up-to-date information about travel warnings, reopening guidance and current information about the coronavirus' impact in the United States. Daily updates about the coronavirus are also available from the World Health Organization.

What is Coronavirus?

COVID-19 is a novel coronavirus that has infected more than millions of individuals in over 200 countries and territories, causing the World Health Organization (WHO) to classify this outbreak as a pandemic on March 11, 2020. Symptoms include fever, cough, and shortness of breath. Anyone experiencing emergency signs such as difficulty breathing, persistent pain or pressure in the chest, new confusion or bluish lips or face should immediately seek medical attention.

What is the risk of exposure to coronavirus?

Older adults and people who have severe underlying chronic medical conditions like heart or lung disease, diabetes or compromised immune systems appear to be at higher risk for developing more serious complications from COVID-19. The virus is thought to spread mainly from person-to-person and the CDC urges citizens to monitor their health, practice social distancing, which means maintaining a distance of 6 feet from others, wear a face covering in public, and avoid crowded places and group gatherings of any size. Visit the CDC's website for latest updates, and recommendations.

How should brokerage staff, agents, and client reports of COVID-19 be handled?

NAR has prepared a Sample Preparedness Plan for Circumstances Relating to COVID-19 for real estate brokerages to adapt and implement in its workplace.

What preventative measures may be taken to reduce the risk of contracting and spreading coronavirus?

The CDC urges individuals to take these measures to protect themselves and others:

• Wash your hands frequently with soap and water for at least 20 seconds. If soap and water aren't available, use an alcohol-based hand sanitizer.
• Avoid touching your eyes, nose, and mouth with unwashed hands.
• Practice social distancing by staying out of crowded places, avoiding group gatherings, and maintaining distance (approximately 6 feet) from others when possible.
• Cover your mouth and nose with a cloth face covering when around others.
• Avoid close contact with anyone who is sick.
• Stay home if you have a fever, cough, shortness of breath or any other cold or flu-like symptom.
• Clean and disinfect frequently touched objects and surfaces.
• Cover your mouth and nose with a tissue when you cough or sneeze, or cough or sneeze into your sleeve.

How does COVID-19 impact a REALTOR®’s fair housing obligations? 

REALTORS® must continue to adhere to fair housing laws during the COVID-19 pandemic. To help REALTORS® navigate their fair housing obligations, as well as some of the novel issues presented by COVID-19, NAR has developed a Guidance for Fair Housing Compliance During the COVID-19 Pandemic.

What precautions should brokers consider taking in their offices?

Brokers should follow all local and state “executive orders and guidance that impact the reopening of businesses. Be sure to understand whether, and under what conditions, a business may open pursuant to applicable orders.  Brokers should be sure to familiarize themselves with all relevant restrictions, as well as incorporate best practices when formulating a plan to reopen physical workplaces. NAR has prepared a Workplace Re-entry Checklist to help real estate brokerages identify and consider what to address before reopening their offices. In addition to performing regular environmental cleaning with special attention paid to frequently touched surfaces, brokers should implement a mandatory "stay-home" policy for any staff member or agent exhibiting any sign of illness. Brokers may also want to consider imposing a mandatory or maximum flexibility remote work policy for employees and in some instances, may be required to do so under their state or local orders. In addition, and based on CDC recommendations, brokers should continue to take measures to limit in-person activities as much as possible, and consider holding virtual meetings  as an alternative to in-person meetings and events.

Be sure to monitor updates from the CDC, as well as your state and local health authorities for additional information and guidance on holding meetings or events. For business travel considerations, review NAR's Coronavirus: A Guide for REALTOR® Associations.

Finally, stay informed, and use your best judgment. Focus on putting policies and procedures in place to keep your employees and agents informed, safe, and to avoid business disruption.  The CDC's Interim Guidance for Businesses and Employers is a helpful resource.

During the COVID-19 pandemic, REALTORS® continue to play an important role in assisting people to find homes. These frequently asked questions about complying with the Fair Housing Act during the COVID-19 pandemic supplement our previous guidance.

What anti-discrimination laws apply to housing during the COVID-19 pandemic?

Federal and state fair housing laws remain intact during the COVID-19 pandemic. Those laws make it unlawful to discriminate on several protected bases, including disability and national origin. The pandemic provides a unique set of circumstances for navigating federal antidiscrimination provisions. First, each real estate professional must determine whether they will provide services during this time. To the extent they continue to make services available, the Fair Housing Act applies. Such services should be provided on an equal basis while recognizing that no one is required to engage in any transactions that put their health or safety, or the health and safety of others, at risk. If reasonable accommodations can be made to provide housing or services to individuals with COVID-19, without threatening the health or safety of others, the federal Fair Housing Act calls for such accommodations to be made.

Are individuals who have COVID-19 covered under the national origin protections of the federal Fair Housing Act?

Yes. When an infectious disease, such as COVID-19, is associated with a specific population or nationality, fear and anxiety may lead to social stigma and discrimination. REALTORS® may not discriminate against individuals on the basis of their national origin, even if they are from other countries that have also been hit particularly hard by the COVID-19 pandemic.

Are individuals who have COVID-19 covered under the disability protections of the federal Fair Housing Act?

This is a novel question that may ultimately be resolved by a court. Based on information currently available, COVID-19 can have severe symptoms for some people and therefore may ultimately be interpreted as a disability for purposes of fair housing law. Therefore, while it has not been conclusively determined whether COVID-19 constitutes a “disability” under the Fair Housing Act, it is advisable to treat individuals who have COVID-19 as being covered by federal disability protections.

Can I ask someone if they have been diagnosed with COVID-19 or if they have had known or potential exposures to the virus before providing services to them?

While anti-discrimination laws would generally prohibit certain questions about a person’s disability, in light of the fact that COVID-19 is widespread, highly contagious, and potentially very dangerous, some federal agencies have issued guidance relaxing this prohibition. For example, the EEOC and CDC, have each issued guidance to employers and homeless shelters, respectively, permitting symptom-related questions to be asked upon entry to a facility. This guidance suggests that it is permissible for real estate professionals to ask someone to self- disclose any symptoms or known or potential exposures to the virus. While such questions may permit REALTORS® to take necessary safety precautions, remember that many individuals with COVID-19 are asymptomatic, so reasonable precautions should be taken regardless of whether someone knows that they have the virus or is exhibiting symptoms. Although it is permissible to request that an individual self-disclose  their exposure to or symptoms related to COVID-19, the COVID- 19 crisis does not provide a basis to ask someone non-COVID-19-related health or medical questions.

May I require an individual complete a COVID-19 screening questionnaire before working with an individual?

You may request that an individual self-disclose information about their COVID-19 status either verbally or in writing. A uniform practice in how this information is collected is advisable, and whether to request this information verbally or in writing is a business judgment. On the one hand, written documentation may prove useful in litigation should a future plaintiff make an argument about whether they were asked to disclose their illness, or whether the health questions had been asked in a selective or particular manner. On the other hand, collecting and maintaining health data about individuals creates a risk that this sensitive data could be revealed, for example, through a data breach or subpoena. Making a verbal inquiry may achieve the same or a similar benefit as a written inquiry, and it may obviate the risk of such disclosure.

If you are considering collecting this information in writing, be sure to consult state law requirements regarding the preservation and maintenance of data.

May I restrict children from attending in-person showings?

Imposing such restrictions are not a recommended best practice.  The Fair Housing Act prohibits discrimination based on familial status, and restrictions on children – and families with children – may create legal exposure.  If you wish to place restrictions on entering the home due to concerns related to COVID-19, consider alternative restrictions instead, such as restricting showings to purchasers of record or restricting the number of visitors allowed in the home at a time,  along with adherence to CDC best practices for the preventing exposure to, and the spread of, COVID-19.

Am I obligated to assist or show or provide housing to someone who has or may have COVID-19?

REALTORS® who choose to continue providing services during this time, have an obligation to make reasonable accommodations to assist or provide housing to individuals who have COVID-19 when able to do so without posing a threat to the health and safety to themselves or others. The federal fair housing law makes an exception to the general anti- discrimination obligations where providing assistance or housing to someone would pose a direct threat to the health and safety of others. For example, when showing housing to such individuals would pose a direct threat to the broker’s or others’ health and safety, and when a reasonable accommodation to mitigate that threat is not possible, then the broker may decline to show the housing to the infected individual.

When determining whether a reasonable accommodation exists to mitigate the threat, it is important to make an individualized assessment about the risks posed by each individual and the extent to which a reasonable accommodation may be made for these individuals. For example, to the extent it is possible to assist or show or provide housing to an individual who has COVID-19 without threatening the broker’s health or the health and safety of others, such measures should be undertaken.

What constitutes a “reasonable accommodation”?

The federal Fair Housing Act requires, to the extent possible, an assessment of whether a “reasonable accommodation” can be made to provide equal access to housing and services to individuals who have a disability. During the COVID-19 pandemic, homeowners may be quarantining in properties and clients, buyers, agents and other professionals may be seeking to enter occupied properties. Thus, the “reasonable accommodation” analysis must evaluate the need to provide housing or services to individuals who have the COVID-19 virus while also protecting the health of all parties to a transaction. This analysis should specifically take into account the fact that the virus is highly contagious and potentially very dangerous if contracted, and each circumstance should be analyzed individually in order to make the accommodation that is most suitable for the situation. Some examples of reasonable accommodations for which sound public health rationales may be advanced, may include offering virtual showings of properties; requiring that the individual requesting the accommodation send a proxy to view the property rather than view it themselves; or providing addendum options such as a Sight Unseen Rider or a contingency that the contract is subject to a later in-person visit at a specified later date in time.

REALTORS® should consider reasonable accommodations, like the examples above, to mitigate health risks while continuing to serve clients and ensuring compliance with all state and federal anti-discrimination laws. However, to the extent that accommodations for individuals who have the COVID-19 virus still present a risk to anyone’s health and safety, impose undue financial and administrative burdens, or fundamentally alter your services, the Fair Housing Act does not require the provision of such accommodations.

What should I do if my proposed reasonable accommodation is rejected?

The reasonable accommodation framework is an interactive one. If the individual requesting the accommodation offers an alternative solution that is reasonable in light of known circumstances, and mitigates the direct threat of harm, then real estate professionals must consider that option. However, if the proposed accommodation does not adequately mitigate the direct threat of harm, the Fair Housing Act would not require provision of the accommodation. Consult local legal counsel when evaluating requests for reasonable accommodation.

What general safety precautions should I take when providing services?

Consider implementing safety precautions that protect not only against those persons known to have contracted the virus but also the many individuals who may be asymptomatic carriers of COVID-19. The widespread numbers of persons who may be asymptomatic carriers suggests REALTORS® should take safety precautions in every real estate transaction, regardless of whether any party is known to have or been exposed to COVID-19. If these measures are applied consistently, a REALTOR® can avoid the potential fair housing liability of selectively applying mitigation practices to only certain consumers believed to be of greater health and safety threat based on an unlawful purpose, such as the consumer’s national origin.

The CDC has published safety guidance that includes recommendations to keep a distance from others and avoid close contact with people who may be sick. And most states have taken various measures to protect against the spread of the virus, including stay-at-home orders and requiring all non-essential businesses to close. Based on these measures, below is a non-exhaustive list of measures you may institute to mitigate health risks and the spread of the virus:

• requiring all people involved in a transaction to wear face masks or available face coverings, consistent with the CDC recommendation to that effect;
• declining to show occupied apartments and houses;
• asking individuals to view apartments and houses one at a time;
• asking individuals to maintain six feet from others and not to touch surfaces;
• ensuring that surfaces are cleaned often and thoroughly;
• using personal protective coverings;
• offering virtual showings of properties; and
• providing addendum options such as a Sight Unseen Rider or a contingency that the contract is subject to a later in-person visit at a specified later date in time.

In anticipation of the wide distribution of COVID-19 vaccines, associations and brokerages should begin thinking about and crafting COVID-19 vaccination policies, as well as understand how the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and other federal, state and local laws may impact the application of COVID-19 vaccination policies to the workforce. Review these key takeaways from the Equal Employment Opportunity Commission’s vaccine guidance to help formulate a plan to address COVID-19 vaccinations in the workplace.

As restrictions begin to ease around the country, NAR provides this guidance to assist brokers in formulating guidelines for their businesses and agents in preparation for business in the new normal. NAR continues to encourage members to use virtual showings and limit in-person activity in all other aspects of the transaction as much as possible during the pendency of this crisis, even where in-person showings are allowable by state or local order.

This is general guidance only. Be sure to consult legal counsel, public health information, all applicable executive orders, and federal, state, and local government and agency guidance.

Before Conducting In-Person Showings

• Check state and local executive orders to confirm the permissibility, and any specific requirements, of conducting in-person showings.
• Encourage buyers to narrow their property search through photos, virtual tours, and leveraging other technology to reduce the number of in-person showings.
• Consider adopting a policy of asking all buyers for a pre-qualification letter to limit in-person showings only to qualified and serious buyers.
• Be familiar with state and local restrictions based on whether a property is vacant, owner-occupied, or tenant-occupied, and consider implementing different precautions for occupied properties versus vacant properties.
• Discuss with a seller the precautions that will be taken when showing their property, and adhere to any specific requirements requested by sellers showing the property.
• Require property showings by appointment, in lieu of open houses, to reduce the number of persons in a property at any given time.
• Request both the seller and potential buyers to self-disclose whether they have COVID-19 or exhibit any symptoms. However, note that COVID-19 is also spread by individuals who are asymptomatic.
• Be aware of any state or local restrictions on the number of people who may be present at the showing, and discourage non-essential parties from attending the showing.
• Be aware of and comply with fair housing obligations related to COVID-19, see Guidance for Fair Housing Compliance During the COVID-19 Pandemic.
• Ask buyers to remain in their vehicle until you arrive at the property.
• For owner or tenant-occupied properties, request that the seller or tenant open all cabinets, closets, window coverings, and to turn on lights before leaving the property.
• For vacant properties, arrive early to open the front door, open all cabinets, closet, window coverings, and to turn on lights.

During In-Person Showings

• Adhere to social distancing recommendations, and maintain a minimum of six feet of space between persons at all times.
• Avoid shaking hands with clients.
• Limit the number of persons who may attend a showing, such as only four people total.
• Require all persons entering a property to immediately wash their hands or to use hand sanitizer, remove footwear or wear booties, and wear a face mask or covering, and gloves.
• Instruct buyers and others touring the home to avoid touching any surfaces in the home, such as light switches, cabinet and door handles.
• Instruct buyers and guests not to use bathroom facilities at the property.
• Do not share phones, pens, or tablets or other personal property during the showing.
• Comply with any requirements of the seller during the showing.

After Showing Property

• Wipe down any surfaces touched during the showing with a sanitizing wipe or disinfecting cleaner, as requested by seller, and suggest the seller also disinfect the property.
• Wipe down the key and lockbox with a sanitizing wipe or disinfecting cleaner after use.
• Speak with buyers outside of the property or in a ventilated area while maintaining a distance of 6 feet, or arrange to speak by phone or email.
• Do not provide any paper documents, and instead follow up with any information electronically after you leave the property.
• Use hand sanitizer upon returning to your vehicle.
• Maintain a detailed log of interactions to enable contact tracing, to include names, dates, and locations of interactions, as well as a party’s contact information.

Shelter-in-Place and Non-Essential Business Orders: What do they mean? 

In an effort to prevent the continued spread of COVID-19, an overwhelming number of states, cities and counties have issued “shelter-in-place” orders (sometimes referred to as “stay at home” orders) or orders mandating the closure of “non-essential” businesses. Shelter-in-place orders generally require citizens to stay home and discontinue all non-essential outings, but still permit individuals to engage in essential activities, such as trips to grocery stores, pharmacies, hospitals, doctors’ visits or work deemed essential under the order. Non-essential business orders, on the other hand, require the physical closure of “non-essential” businesses, but generally do not require individuals to stay home. 

What does it mean to be considered an “essential service”?

Ultimately, the shelter-in-place or non-essential order sets forth what is deemed an “essential service”, and it is imperative that you adhere to the order exactly as prescribed. In general, where real estate is deemed an essential service means that real estate is included on a list of industries and workers deemed to play a critical role in the community by ensuring continuity of functions critical to public health and safety, as well as economic and national security.

If real estate is deemed an “essential service,” is it business as usual?

No, it is anything but business as usual. Public health and safety is the number one priority. Where real estate is deemed an “essential service,” you have the opportunity to continue to serve clients provided you adhere to the parameters of the relevant order and take all necessary health and safety precautions, including those specifically mandated in the order, such no open houses; limits on the number of people permitted at in-person showings; limiting all other in-person activity; and observing social distancing guidelines set forth by the CDC. Your state regulatory agency may also have guidance on what activities are or are not allowed under your state’s order. Even where real estate is deemed an “essential service,” we strongly encourage REALTORS® to use virtual showings and limit in-person activity in all other aspects of the transaction during this crisis. REALTORS® have a special opportunity to lead by example, and to do what they believe is best for their communities and their wellbeing.

What if a city or county’s order conflicts with the state’s order?

A state’s order will generally supersede a city or county order. However, to resolve conflicts between various orders, carefully read the state order in conjunction with all city or county orders. When in doubt, consult your legal counsel.

How are these orders enforced?

Many states rely on citizens to police themselves, while others impose civil fines for violations or even take a stronger approach where a violation of a statewide order could result in a misdemeanor or imprisonment.  Should a business defy a shelter-in-place or non-essential business order, the business could, for example, face revocation of its license to operate.

Shelter-in-Place and Non-Essential Business Orders: Checklist for Brokers

• Determine whether a Shelter-in-Place Order or Non-Essential Business Order has been issued in your geographic area.
• Be familiar with the terms of the order.
• Determine whether real estate is identified as an “essential service” in the order.
• If real estate IS included as an “essential service” in the order:
  • Promptly communicate with staff and agents requiring compliance with the order, and explain its impact on their ability to conduct business.
  • Determine whether the brokerage’s office may remain open, and observe to any required limits on the number of individuals permitted in the office. 
  • Consider whether staff is permitted to work remotely.
  • Reiterate the importance of following the CDC’s recommendations for preventing the continued spread of COVID-19 when conducting business and serving clients.
  • Have a Preparedness Plan in place to respond to COVID-19 issues.
• If real estate IS NOT included as an “essential service” in the order:
  • Promptly communicate with staff and agents requiring compliance with the order, and explain its impact on their ability to conduct business.
  • Close the brokerage’s office in compliance with the order. 
  • Provide clear and prompt communication to brokerage staff and agents regarding the office closure, and remote work requirements.
  • Encourage staff and agents to continue conducting business and serving clients remotely, including by leveraging available technology, and alternative ways to market properties.

To address issues that come up in your day-to-day business, we urge members to find answers that ensure first-class service to clients, while also demonstrating care for the health and well-being of clients, agents, and the greater public welfare in reducing the spread of COVID-19.

My seller wants to stop in-person showings, what should I do? Are there any alternatives to in-person showings?

A seller generally has control over how their property is shown, and has agreed to certain marketing activity in the listing agreement. If the seller desires to prohibit in-person showings, be sure to get those instructions in writing, and consider an addendum to the listing agreement to extend the listing. 

At a time when in-person showings may be inadvisable, and even prohibited, let your client know about available alternative marketing opportunities that will allow you to continue to serve them and market their home.   Three-dimensional interactive property scans (via Matterport, Cupix, EyeSpy360); virtual tours or live tours using Skype or Facebook; and virtual staging to showcase a property are among the great alternative marketing opportunities you can offer your client.

Kleard offers on demand open houses, Immoviewer offers video tours, and BombBomb offers video check-ins. Some companies are making their technologies even more accessible, including these NAR REACH Companies: 

• Immoviewer has removed tour limits for members of their Association/MLS partners, like BeachesMLS in Florida and SmartMLS in Connecticut. Their tour platform provides a “Live Tour” feature that allows agents to share tour links with potential clients and control movement through the tour, or to give tour control to the consumer to create a virtual showing.
• FloorPlanOnline helps you hold virtual showings anytime through an easy to use point & click FloorPlan Tour with an exclusive 3D space designer or a more robust 360 WalkThrough Tour in select markets. Visit FloorPlanOnline for special discounts.

Be sure to secure proper copyright permissions before uploading any media to the MLS.

In the event the seller wants to cease all marketing efforts, consider placing the property in a  “temporarily off market” status. 

Should we continue to hold open houses during the COVID-19 pandemic?

NAR strongly urges members to use virtual showings and to limit in-person activity in all other respects to the greatest extent possible, even where real estate is deemed an “essential service.” Adherence to applicable state and local executive orders is a minimum requirement, and in some instances, may even preclude open houses, in-person showings and limit the number of individuals permitted at a showing. Regardless, REALTORS have the special responsibility and mandate to take all necessary health and safety precautions, and should lead by example by conducting their services in a responsible manner, which includes leveraging virtual technology solutions and avoiding in-person contact to the greatest extent possible in order to prevent the continued  spread of COVID-19 in their communities.

If a “Shelter In Place” Order or similar order is in effect in my geographic area, can a broker require its agents to stop holding open houses and conducting other in-person real estate activities?

Yes. Brokers can and should enforce executive orders with all  agents, including independent contractors. Brokers and agents should be familiar with the details of applicable orders, including whether real estate is deemed an “essential service,” and how the order(s) impacts the permissibility of conducting in-person real estate-related activities.

If I’m allowed to continue in-person real estate activities, may I limit in-person showings to pre-qualified buyers?

Yes. Both listing and buyer’s agents may ask if a buyer is pre-qualified to purchase and limit showings to qualified buyers, but be sure to ask all buyers for a pre-qualification letter to avoid a potential Fair Housing violation. Keep in mind that it may be difficult for buyers just entering the market to obtain a pre-qualification letter given that many mortgage companies are currently handling high volumes of refinancing applications and other operational issues.

Should I use a COVID-19 hold harmless agreement to protect myself against a party contracting COVID-19 through in-person showings? 

Agents should consult their brokers and legal counsel before using hold harmless agreements in order to assess the risk and effectiveness of such agreements. In general, a hold harmless agreement protects a party from liability if another party is injured on their property or is injured during an inherently dangerous activity. In the case of a pandemic where the risks associated are not only widely known, but is also widespread, easily transmittable, and may not show symptoms for days after exposure, proving causation would be nearly impossible from a legal standpoint.

Are there any risks or potential liability to showing a property to a buyer virtually?

Buyers have purchased properties “sight unseen” for a variety of reasons long before this pandemic. However, where a buyer purchases a property without physically visiting, relying only on photos, livestreaming, or online virtual tours, it may be a good idea to include language in the purchase agreement where the buyer acknowledges that the buyer – not the listing broker, agent or seller – is responsible for personal verification, walk-throughs and professional inspections to confirm condition and that the property is satisfactory.

The board of the condominium building where I have a listing just closed the building to visitors, including real estate agents showing properties. Can they do that?

These are unprecedented times, and some homeowners’ associations are restricting access to common areas as part of community efforts to prevent the continued spread of COVID-19. Authorization to implement such restrictions should be captured in the building’s Covenants, Conditions and Restrictions (CC&Rs) document. If your client’s unit is accessed via a common area (building lobby, elevator and/or hallway), then the homeowner association may have the right to restrict visitors. This is yet another good reason to use alternative marketing opportunities, such as virtual tours, to continue to show property.

I have an offer to present to my seller, but my client is self-isolating and does not want to meet in person. How can I present the offer?

You can present the offer virtually. Consider virtual options that allow you to see your client face-to-face while also sharing a document so you can explain the offer. Web conferencing services like Zoom, GoToMeeting and many others have this capability.

Does the fact that someone had COVID-19 in the property create a stigmatized property requiring disclosure?

State law governs what is considered a stigmatized property, and any required disclosure. Currently, there is no evidence to suggest that the coronavirus survives on surfaces that are properly cleaned and disinfected per the CDC’s recommended protocols, suggesting that the existence of COVID-19 in a property would not deem the property stigmatized, but this is an ever evolving situation.  Consult your legal counsel with any questions regarding your disclosure obligations.

How have MLSs responded to COVID-19?

A number of MLSs have added fields in their platform to accommodate the use of virtual tours, virtual showings, and virtual open houses, and some MLSs have disabled the use of open house fields all together. Although there has been a lot of discussion about whether or not to suspend the accumulation of “Days on Market” for individual listings, MLSs have largely responded by opting to support the use of existing statuses to take a listing temporarily off-market. Most recently, MLSs have found a need to consider a temporary pause on the enforcement of certain rules such as those that may require “physical presence” when showing a property or business rules such as requiring all “Active” listings to also be available for showing. For more information on changes MLSs may be taking, visit NAR's MLS COVID-19 Guidance page.

To address issues that come up in your day-to-day business, we urge members to find answers that ensure first-class service to clients, while also demonstrating care for the health and well-being of clients, agents, and the greater public welfare in reducing the spread of COVID-19.

What additional terms should I add to a purchase agreement, in case there are delays due to coronavirus-related closures or government orders?

An extraordinary event, like an epidemic or government order, that may affect a transaction is sometimes addressed in a “force majeure” clause in the purchase agreement, which generally allows a party to suspend or terminate performance based on unanticipated circumstances beyond a party’s control that renders performance under the contract impossible or impracticable.

Here, you could also consider including a addendum to the purchase agreement that specifically addresses potential delays related to the coronavirus pandemic . Many brokerages and REALTOR® associations have created these addenda, which extend the closing date if necessary, and address other issues including of the unavailability of inspectors or appraisers; a party’s inability to travel to sign documents; a party being subject to a mandatory quarantine; and closings of or delays in related government and business services such as closing of lenders and title/escrow companies necessary to close the transaction. 

Can my sellers cancel a purchase agreement because they don’t want vendors/inspectors coming through the home?

Every transaction and purchase agreement is different. Sellers should consult legal counsel to determine their options for canceling and any applicable penalties.  In the alternative, the seller could seek an extension of the buyer’s due diligence period through an addendum to the purchase contract. Check with your broker, or your state or local REALTOR® association for a COVID-19 addendum that addresses common coronavirus-related issues.

My clients cannot travel to the U.S. due to travel restrictions; how can we close the transaction?

First, inform the other party’s agent and title company, and consider whether execution via electronic closing if available in your state. If your client wants to move forward with the transaction but is unsure when they will be allowed into the U.S., then you and your legal counsel could also consider an addendum extending the closing date. Or, if your clients are near a U.S. embassy or consulate, they may be able to execute the documents abroad. According to the U.S. Department of State, notarizing officers are available at any U.S. embassy or consulate, and services are available to both U.S. and non-U.S. citizens. Check with the title company to discuss these options.

We are getting close to the closing date, but my clients are nervous about leaving their home to sign documents at the escrow company’s office. Can I force them to attend the closing?

First and foremost, refer to all applicable executive orders in your state for any restrictions that may impact real estate closings, and consider whether there are any alternatives to an in-person meeting. Several states have adopted remote notarization laws, and others have recently enacted remote notarization through executive orders, which may move the transaction forward and help avoid an in-person meeting. Find out more about remote notarization in this video and see how remote notarization works.

Will mortgage approvals be delayed?

Possibly. Talk to the lender immediately about how mortgage approval may be impacted by the pandemic, and specifically how they’re addressing issues such as the high volume of refinancing applications, appraisers who may not be able to access properties due to local restrictions, and underwriting offices that may be short-staffed.

Will recording be delayed?

Possibly. Check with the escrow or title company and find out if the local recorder’s office uses electronic recording, and if so, whether the title company is equipped to record the deed electronically. Depending on the details of applicable executive orders, government offices may be open and able to record the deed. 

The parties should be prepared for a recorder’s office to be short-staffed or closed due to coronavirus-related issues or government orders, and may want to consider an addendum to the purchase agreement to address this disruption, and who will bear the cost of any “gap” title insurance between the closing and recording.

To address issues that come up in your day-to-day business, we urge members to find answers that ensure first-class service to clients, while also demonstrating care for the health and well-being of clients, agents, and the greater public welfare in reducing the spread of COVID-19.

Can a tenant prohibit prospective tenants from viewing my client’s property due to coronavirus concerns?

Generally speaking, a tenant may not prevent showings. However, in these unique circumstances, it is imperative that you consider everyone’s health and safety first, and consider offering a a virtual showing of the property to avoid in-person contact all together. 

Be familiar with applicable executive orders that may limit your ability to show property in-person, and be aware that some state regulatory agencies have even banned tenant-occupied property showings. Consider doing in a virtual showing of the property, and where an in-person showing takes place be sure to take all necessary precautions and observe CDC recommendations, including requiring prospective tenants to wear a face mask, gloves and/or booties, to wash their hands or use hand sanitizer immediately upon entry, and practice social distancing at all times.

The tenants in my client’s property are under quarantine and the lease is ending. What can we do?

Several jurisdictions across the country have temporarily suspended eviction and foreclosure proceedings. Even where such suspensions are not in place, if a tenant or anyone living in the property is under quarantine for COVID-19 illness or exposure to COVID-19, consider allowing the tenant to remain in place for the duration of the quarantine period. If the lease agreement calls for penalties for failure to vacate the property, the landlord may exercise discretion in enforcing the penalties, or the landlord and tenant could agree to additional rent during the duration of the holdover period.