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Open Houses, Best Practices and Forms, Oh My!

By: Hank Lerner, Esq. on in

As some of Pennsylvania’s most populous counties move into the green-phase of reopening, the PAR Legal Hotline is getting another wave of green-phase questions. The topical FAQs on PAR’s coronavirus resource page cover a number of these topics, but here are some of the highlights:

Q: What are the differences between yellow-phase and green-phase rules?

A: Real estate activities in yellow-phase counties (the one that is remaining at this point) are covered, in part, by special guidance that applies only to real estate. In green-phase counties, the specific guidance no longer applies – we know this because it says so right in the document – and real estate is covered by the general business guidance that applies to all businesses in the state.

But the general business guidance is not targeted directly to real estate, which means that there are fewer bright-line rules and more of a grey area. For example, in yellow-phase counties, the rule is clear that there can only be three people in a property at one time. That specific rule goes away in the green-phase counties, replaced with guidance to work remotely where possible, minimize in-person activities, limit attendees to 50 to 75% of capacity and ensure social distancing. So how many people can be in a property that’s in a green-phase county? Dunno. Might be more than three, might be fewer than three, depending on the size and configuration of the property, along with the comfort level of the buyers and sellers. This will often be more of a common-sense issue for most agents unless their broker elects to create more specific brokerage policies.

Q: Why do PAR’s best practices only have yellow-phase information?

A: They don’t – not exactly. PAR’s best practices document was drafted by a member task force even before the governor’s office released their industry guidance. It looks a lot like the yellow-phase guidance mostly because we know the administration used it as a reference. But even when practice requirements are loosened in the green phase, we are suggesting that brokers consider continued use some of those practices simply out of caution. Just as many PAR forms go above and beyond state-required minimums, our suggested best practices are sometimes more restrictive than the state minimums. It is ultimately up to the individual brokers and members to decide how they want to practice, so long as they don’t do less than what is required by the state. Be sure to read the document carefully so you can see which items are mandatory or voluntary, and where some of the restrictions came from.

Q: Do we still have to use PAR’s COVID forms in green-phase counties?

A: These new forms (COVID, COVID-PAN, COVID-HSA) have never been required. They are suggested as part of the PAR best practices, and while they may explain certain required parts of the transaction the form itself is not a requirement – unless your broker has created such a policy at the brokerage level. While these forms are usable in any of the reopening phases, members are cautioned to thoroughly read and understand them to ensure that the language in those forms reflects your actual practice. If you have chosen to do things differently, you should discuss with your broker and/or brokerage counsel how to handle those issues with your clients.

Q: Can we hold open houses in green-phase counties?
A: Speaking of topics that are covered in the FAQ… yes. Technically, at least. Since the yellow-phase ban no longer in place, they are technically allowed. That said, businesses in green-phase counties are encouraged to work remotely as much as they can, to limit in-person activity and to conduct business by appointment as much as possible and to enforce mask-wearing and proper social distancing. Since a typical open house doesn’t necessarily tick those boxes, an agent who still wants to do one would need to figure out how implement policies to keep them as safe as possible.

This might include things like requiring appointments, or if there is more than one potential buyer on-site, queuing them up outside and only allowing each inside for a limited amount of time. Depending on the size and layout of the house, it might also mean having a specific traffic flow to avoid bottlenecks, or utilizing multiple agents in the house to ensure that social distancing is enforced. PAR has not issued specific suggestions since many of the options would be guided by the local market and the specific properties, but brokers are encouraged to work through these issues – with counsel if necessary – before conducting open houses.

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Comments (6)

Comments

  • Rose DeWeese   June 26, 2020 at 9:07 am

    On behalf of the members of BCAR, I thank you profusely for writing this article.

    Reply to Rose DeWeese
  • Anthony Cimino   June 26, 2020 at 9:08 am

    Question,
    Is it acceptable for an agent to request photo ID from visitors at an open house?

    Reply to Anthony Cimino
    • Hank Lerner, Esq.   June 26, 2020 at 9:36 am

      There’s no specific reason why an agent could not ask for ID before allowing access to an open house. Many safety educators encourage agents to get an ID from new buyer clients before taking them to properties as a precaution, and this could be viewed in a similar fashion – both for coronavirus and for general safety purposes (there are sometimes physical attacks at open house events). But one of the biggest issues is to make sure that you’re doing it consistently for all potential buyers. If an agent were to only ask for ID from select attendees, or only at houses in certain neighborhoods, a discriminatory intent might be implied even if none was intended. And be sure not to misuse that information. For example, if you are going to require additional personal information for “safety purposes”, don’t turn around and use it to market to the attendees without at least giving them the chance to opt out.

      Reply to Hank Lerner, Esq.
  • Wanda Moore   June 26, 2020 at 9:17 am

    Thank you for taking time to explain !

    Reply to Wanda Moore
  • Sue Lease   June 26, 2020 at 12:31 pm

    Very helpful – thanks Hank!

    Reply to Sue Lease
  • ellen   June 27, 2020 at 4:49 pm

    THANK YOU so very much for interpreting this all for us. Super appreciated!!

    Reply to ellen

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