BARRISTER'S BRIEFING: Phase 2: What You Need to Know

Brian Levine | June 2020

Brian Levine, HGAR In-House Counsel/Director of Legal Services & Professional Standards Administrator

As you are all aware, the post Covid-19 reopenings are underway and the Mid-Hudson region is currently in Phase 2. There are many rules that New York State’s Department of Health has outlined as mandatory requirements and others as “best practices” that are strongly recommended. You are all encouraged to read the “Interim Guidance for Real Estate Services During the Covid-19 Public Health Emergency” and the “Real Estate Guidelines for Employers and Employees.” Both these documents are on the HGAR website (https://www.hgar.com/covid-19/covid-19-resources-and-videos).

While there are many rules and requirements for office reopening and requirements for employers and employees, today I will focus on the rules pertaining to agents and the conducting of showings and open houses. I will break this information down to what is mandatory, best practices, and additional materials.

Mandatory Requirements

Inspections/Appraisals/Walkthroughs: Accompanied showings and appraisals are permitted, so long as proper social distancing and PPE safety precautions are implemented, including the wearing of face coverings at all times.

In-Person Showings: In-person showings are now permitted ONLY for properties that are unoccupied (occupant is not inside the property), or vacant. You may not show properties that have people in them at the time of the showing.

Showing Common Areas: While the showing of common areas are discouraged, it is permissible. However, if a common area is shown, the agent must ensure that the area is frequently cleaned and disinfected and proper social distancing is maintained. Further, high-touch areas must be cleaned/disinfected by the agent. (See “Cleaning and Disinfecting” below).

Number of Parties: For all SHOWINGS, the number of parties (people of different households) must be limited. For an OPEN HOUSE, only one party at a time (along with the agent) is permitted inside the property.

Physical Distancing: A distance of at least six feet must be maintained between individuals.

Personal Protective Equipment: All individuals visiting a property must wear a face covering at all times. All visitors must be reminded to wear face coverings at all times during the visit, including while in common areas. No person should be permitted into a property without a face mask.

Cleaning/Disinfecting: All high-touch surfaces (e.g. handrails, doorknobs, etc.) are to be cleaned/disinfected by the agent before and after every showing. If common areas are shown, the agent must ensure that those areas are frequently cleaned and disinfected and all high-touch areas must be wiped down before and after the common area showing.

Staggered Showings: Showings must be staggered to avoid a congregation of people in the area or outside.

Best Practices

Showings/Open Houses:

• Homeowners and landlords may still refuse to permit in-person showings or open houses.

• Individuals should be limited as much as possible. It is recommended that only one party (e.g. building inspector, home appraiser, prospective buyer/tenant, photographer, stager) be allowed inside at one time with the agent. Six-foot distancing must still be maintained at all times.

• If multiple parties (people from different households) arrive, they should be encouraged to wait outside, away from others, in a safe location (curb, car, etc.) until called.

• Appointments for showings should be scheduled in advance.

• Maintain a log of all visitors to open houses.

• Ample time should be afforded between visits for cleaning/disinfecting and in order to avoid contact between parties coming and going.

• Agents should remind parties to only touch essential surfaces (handrails, etc.) and not cabinets, countertops, appliances, etc.
-It is recommended that common building amenities not be shown in-person (e.g. gym, roof deck, pool).

• A homeowner/landlord may restrict showings to only purchasers of record and necessary parties. Remember that it is illegal to prohibit children or the elderly from viewing a property, but it is recommended by NYSAR that their attendance be encouraged to be limited as much as possible due to medical concerns.

• Agent or homeowner/landlord should ensure that all necessary doors are open and that all required lights are on prior to visit.

• Post appropriate signage to provide information/instruction and clarify proper conduct.

• Walkthroughs: Remote walkthroughs are strongly encouraged where possible.

Personal Protective Equipment

• Gloves and shoes coverings can be required. If this is the case, this should be noted in the agent remarks and such supplies should be present at the site, if possible.

• Protective masks should be on hand to provide to parties who do not have masks. Remember, a party cannot be permitted entry if they are not wearing a face mask.

• Hand sanitizer should be made available before and after the visit.

Sharing: The use of shared tool/materials (e.g. pens, paperwork, tape measures) should be avoided.

Temperature Check: All party’s (buyer/tenant) temperature should be taken prior to any showing/open house.

Screening Questions

It is recommended that, at a minimum, the following written screening questions should be provided to all parties (buyer/tenant/seller/landlord) and a response obtained prior to any visit as to whether the party has:

(1) Knowingly been in close or in 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;

(2) Tested positive for COVID-19 in the past 14 days, or;

(3) Has experienced any symptoms of COVID-19 in the past 14 days.

Additionally, on the day of the visit, the following question should be asked:

(1) Has seller/landlord become symptomatic and/or tested positive for COVID-19 within 48 hours of the last visit to their property; and

(2) Has the buyer/tenant become symptomatic and/or tested positive for COVID-19 within the last 48 hours.

• It is further recommended that all screening questions be provided and responded to remotely in order to circumvent inadvertent and avoidable contact.

• If any party affirms possible exposure to COVID-19, the agent should take the appropriate action after consultation with their broker and then notify all necessary parties.

• If it is later learned that any party may have contracted COVID-19 at any time on or about the time of the visit, all necessary parties should be notified as determined by the brokerage.

• It is recommended that all records be kept confidential and be maintained for a period of time as determined by the brokerage.

COVID-19 Phase 2 Disclosure: It is recommended that the agent and client execute a COVID-19 Phase 2 disclosure, which should be retained for a period of time as determined by the brokerage.

Driving with Clients: It is recommended that agents do not drive with prospective buyers/tenants and separate vehicles be utilized. In the event that this is not possible, face coverings must be worn by everyone in the vehicle and high-touch areas should be cleaned and disinfected before and after.

Additional Materials

It has been a while since many of us have conducted showings and/or open houses. Please be reminded that effective June 20, 2020, a Fair Housing disclosure must be provided to your client at first substantive contact and a Fair Housing Notice must be posted at all open houses. Copies of these documents are available on the HGAR website in the document directory (https://www.hgar.com/documents/fair-housing).

Conclusion

Overall, it is important to use extreme caution while conducting any in-person activities. Err on the side of caution, be well prepared, be concise in your execution, and be extremely conscientious of what you do, where you go, and what you touch. COVID-19 is still a real and present danger. Do not risk your health and the health of family and friends in your excitement to get back to work. We are all excited to jump into our new “business as usual,” but we need to reengage slowly. Be safe.

Legal Update

As many of you know, it has been a customary practice in many parts of New York State for tenants to reimburse landlords a “broker fee” or “commission” equal to a fixed amount when renting a property.

By way of background, in June, 2019, Gov. Andrew Cuomo signed into law the Statewide Housing Security & Tenant Protection Act of 2019 and the Housing Stability & Tenant Protection Act of 2019. In January, the New York State Department of State published an updated guidance relating to these acts. That DOS Guidance stated that requesting a broker’s fee/commission from the tenant was not permissible.

In opposition to this guidance, NYSAR, REBNY, and other real estate brokerages filed a lawsuit. This lawsuit was opposed by the office of the New York State Attorney General. In February, the Attorney General obtained a temporary restraining order extending their time to answer.

Most recently, the office of the Attorney General again requested, and was granted, another extension of the temporary restraining order until at least Sept. 11, 2020.

As a result, and until such time that the matter is heard and resolved by the courts, a landlord/landlord’s agents will still be permitted to continue to request and collect a broker’s fee/commission from the tenant.

For updates, please check the NYSAR website.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.