BARRISTER'S BRIEFING: Remain COVID Compliant: There’s Light Up Ahead, But We’re Not Done Yet

Brian Levine | May 11, 2021

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

As of early May 2021, nearly 48% of all New York State adult residents have received at least one dose of the COVID-19 vaccine. Nearly 36% have been fully vaccinated. Business doors are opening and there seems to be light at the end of this long COVID tunnel. While the rules are starting to loosen up, it’s important to remember that there are still regulations that are still in place relating to COVID-19 protocols that all Realtors must still follow.

These rules, established by the Phase 2 rollout have not changed, even though New York State has advanced to subsequent phases. Failure to comply with these rules could result in Code of Ethics violations, Department of State violations, as well as charges being brought against you and your broker by the New York State Office of the Attorney General, and/or local authorities or police. Because of all the positive changes that have recently taken place, I’ve received a lot of inquiries about the current state of the rules relating to COVID-19. So, this month’s article is simply a quick refresher for everyone.

No Cold Calling

Under the present State of Emergency, which was extended to May 25, 2021, real estate agents cannot cold call unless they have an established relationship with the call recipient. This means that Realtors may not call expired listings or FSBOs to solicit the listing. Realtors may only contact FSBOs if they have a potential buyer. Other types of marketing are still permissible (mailers, billboards, social media, etc.).

No Door-to-Door Solicitations

According to Phase 2 rules, whenever possible, and to the greatest extent possible, all real estate activities are to be conducted remotely with consumers. This rule has not changed. According to the New York State Association of Realtors, this means that Realtors should not be knocking on doors to solicit business or meeting face-to-face with consumers unless absolutely necessary.

Six Feet Apart

Nothing more needs to be said. Keep six feet between you and the consumer.

Use of PPE and COVID Forms

Effective May 19, 2021, those that are fully vaccinated will not be required to wear masks outdoors (with limited exceptions). However, you must wear a mask indoors when working with consumers. Phase 2 rules still require that all parties at a showing wear masks. It is strongly recommended that all agents carry extra masks, cleaning products and hand sanitizer. Additionally, if the homeowner requires the execution of COVID forms, they must be filled out and provided. Failure to satisfy the homeowner’s showing requirements or to have parties enter a property without a mask is a violation of the Code of Ethics as well as a direct violation of the Phase 2 requirements.

Showings

You can only show properties that are unoccupied (no one is inside) or are vacant (no one presently lives there). Further, the number of parties (people of different households) must be limited to those necessary for decision-making purposes. For an open house, only one party at a time (along with the agent) is permitted inside the property and showings should be staggered to avoid crowding. Children and the elderly are strongly encouraged not to participate in showings.

Cleaning/Disinfecting: All high-touch surfaces must be cleaned/disinfected by the agent before and after every showing.

Quarantining

As of April 10, 2021, while the Centers for Disease Control (CDC) still recommends quarantining, asymptomatic travelers are not required to test or quarantine. However, all travelers who have been out of the state for more than 24 hours (except those who traveled to contiguous states) must still fill out a New York Traveler Health Form for contact tracing purposes.

Conclusion

Aside from violating the Code of Ethics (not acting in the best interest of your client, not treating all parties fairly, failing to follow homeowners showing instructions, improperly accessing a property, making misrepresentations relating to a property or transaction, failing to cooperate with other Realtors) or violating the OneKey Rules and Procedures (failing to follow showing instructions, improperly accessing a property), if the Department of State Licensing division were to become involved, and all it takes is a simple phone call, an agent could potentially risk not only his license, but also the license of his/her broker, as the broker is required to supervise the licensee.

Further, failing to comply with the cold call moratorium, failing to follow simple PPE requirements, failing to clean/disinfect, or having too many people gathering for a showing could be reported to the New York State Office of the Attorney General and legal action could ensue and fines could be levied as well. However, worst of all is the fact that if anyone were to contract COVID-19 due to simple inaction or negligence, whether it’s you, a client, a parent, a grandparent, or a child, you will forever be saddled with the knowledge that your desire for financial gain, and your cavalier and callous actions were to blame. Don’t let that happen.

Yes, there’s light at the end of the COVID tunnel, and no, it’s not an oncoming train. That warm summer light will be here soon enough, we just need to be patient. In the meantime, follow the rules, take precautions, and wear a mask.

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