Real Estate in the Age of COVID-19: Suggested Best Practices

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Introduction

While many aspects of real estate can be conducted remotely, some elements of a transaction require at least limited in-person activities. In most transactions it is in the interests of both buyers and sellers for buyers to physically view a property before purchasing it, and there are any number of inspections to determine property values and to address health and safety issues. Licensees should attempt to perform activities remotely without contact whenever possible. Where in-person activities are necessary, licensees will, at a minimum:

  • Conduct all business operations according to the most relevant state business guidance, including[1]:
    • May 19, 2020, “Guidance for Businesses in the Real Estate Industry Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (Real Estate Guidance)[2]

      ** Items required by May 19 Real Estate Guidance will be marked with asterisks. **  Except where noted, these items are required for in-person activities in red and yellow-phase counties, and are still recommended best practices for green-phase counties.

    • May 4, 2020 (last updated June 1, 2020) Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (General Business Guidance).
  • Follow other generally applicable guidance from the Pennsylvania Department of Health (DOH), the Centers for Disease Control and Prevention (CDC), and other relevant state or federal authority.
  • Minimize in-person activities, and minimize attendance to only the most critical individuals, while maintaining social distancing in all in-person interactions.
  • Provide clients and customers with relevant up-to -date safety information and protocols for cleaning and sanitizing properties.
  • Ensure that the listing broker maintains a record of ALL appointments, and that either the listing broker or buyer broker maintain contact information for all individuals who visit the property during the transaction. **

Brokerage Policies & Resources

This document and other guidance from the Commonwealth of Pennsylvania should be viewed as minimum standards for the real estate profession. Brokers are encouraged to consult with counsel to develop their own brokerage policies with specific guidance for licensees and staff working with buyers and sellers.[3] Additional resources are provided in the Resources section of this document.


[1] Guidance documents are current as of revision date of this document and will be updated as state guidance changes. This document contains numerous footnotes with sources and further explanation. Please read carefully to understand how and why various items are included.

[2] This document fully replaces the Department of State memorandum from April 28, 2020, which is now void, and governs real estate practice in red and yellow-phase counties only. Green-phase counties are governed by the General Business Guidance.

[3] All businesses must develop health and safety plans for their business locations, to include several specific topics, and must take steps to make customers and employees aware of the efforts and commitment to protecting public health and safety (General Business Guidance).

General Hygiene and Protection

  1. All individuals present for any in-person real estate activities will utilize sanitizer with at least 60 percent alcohol, and wear masks/face coverings.** Bring plastic bags for disposal and remove all personal protective equipment or other items brought to the property.
  2. Until you wash your hands or utilize hand sanitizer, avoid touching your eyes, nose, or mouth.
  3. Do not shake hands or come into physical contact with any individuals at this time.
  4. Limit the amount of time that you spend in contact with other individuals.
  5. Utilize CDC guidelines for cleaning and disinfecting facilities and provide information on relevant guidelines on cleaning and disinfecting households to clients.
  6. Follow the cleaning and disinfecting guidelines for items such as your cell phone, keypad, steering wheel and door handles.
  7. All individuals who will be present for in-person real estate activities should complete a verbal health screening prior to every activity,** which could be similar in scope to PAR Form COVID-HSA[5] and could include, but not be limited to the following information regarding whether:
    • In the past 14 days, any residents or visitors have been in direct contact with a person who has been diagnosed with COVID-19.
    • In the past 14 days, any residents or visitors have been in contact with a person who has been diagnosed with, or is being tested for, COVID-19.
    • In the past 14 days, any residents or visitors have traveled internationally, been on a cruise or been to any domestic location subject to a Federal of state travel advisory. (rev. 7/10/20)
    • In the past 72 hours, any residents or visitors have had a fever of over 100.4° F.
    • In the past 72 hours, any residents or visitors have experienced, coughing, shortness of breath or other recognized symptoms of COVID-19.
  8. Do not allow in-person access to properties where a resident or potential visitor indicates actual or likely exposure, unless the property owner provides informed consent after reviewing the relevant health information and any explanations.[6]

[4] Generally accepted safety and hygiene protocols adapted from multiple sources. (see Real Estate Guidance)

[5] A verbal health screening is “encouraged” by state guidance, but not required. (Real Estate Guidance) There is no state requirement for a written health screening form. Brokers doing a written or verbal screening should utilizing a standard document to ensure they are done uniformly and to provide appropriate records of the screening. (See NAR’s “Coronavirus: A Guide for Realtors®”: “it is reasonable to screen individuals for COVID-19 prior to showing an individual a property”, so long as the same screening is used for all clients and agents also take all required health and safety precautions.)

[6] As a best practice, brokers should advise seller clients to consider not allowing access to individuals who identify substantial risk factors for possible infection. If sellers do wish to allow that access, obtain that directive in writing after ensuring that the seller has access to relevant health and safety information regarding the possible risks.

Listing appointments

Initial listing interviews should take place remotely. If a physical inspection of the property is needed to assure accurate pricing, assess health and safety issues, assure accuracy in information transmitted to potential buyers, or to avoid potential litigation for the seller, the following procedures should be followed.

  1. No more than three individuals (one agent; two sellers) may attend an in-person listing appointment.** Any occupants of the property not directly involved in the listing/selling decisions should either leave the property for the duration of the appointment or utilize appropriate social distancing.
  2. All individuals who will be present for an in-person appointment should[7] complete a verbal health screening prior to the appointment,** which could be similar in scope to PAR Form COVID-HSA.
  3. Every person at the listing appointment (sellers and agents) must utilize sanitizer and wear a mask/face covering.**
  4. Provide relevant safety information to sellers and discuss the benefits and risks of allowing in-person activities. Determine whether additional seller instructions are necessary and formalize any such instructions in writing.[8]

[7] This is “encouraged” by state guidance, but not required. (Real Estate Guidance)

[8] Sellers retain the right to establish property access rules that are stricter than those required by state and federal rules, but agents CANNOT obey seller instructions to conduct activities in a way that violates any mandatory rules. For example, an agent could NOT provide instructions to buyers indicating that they do not have to wear masks in the property, because that is currently a mandatory state requirement.

Marketing

  1. In red and yellow-phase counties, do not conduct in-person group showings for either consumers or licensees, including but not limited to, open houses, broker opens or office tours.** In green-phase counties open houses are permissible, but must be conducted with limited attendees and proper social distancing.
  2. Utilize electronic marketing as much as possible, which could include virtual tours, virtual showings and virtual open houses.
  3. Where a virtual showing is facilitated by someone other than the seller (e.g., an agent or other service provider is conducting a live walk-through for a remote buyer), the seller should be asked to open all doors and blinds and turn on all lights as if for an actual showing and should be advised not to be present.

Prior to Showings, Walkthroughs and other Buyer Visits

  1. Encourage the use of virtual showings before scheduling an in-person showing.
  2. Advise sellers and buyers of the risks and responsibilities involved in showing and visiting properties.
  3. All showings are to be held by appointment only.**
  4. Schedule a minimum of 30 minutes between showings (or longer, based on property size and seller instructions).**
  5. Consider limiting in-person showings to those who have been pre-approved by a mortgage lender or who demonstrate proof of funds.[9]
  6. Special requirements of sellers should be provided through the MLS or directly to buyer agents/buyers.[10]
  7. Comply with community/cooperative/condominium/homeowners’ association rules regarding access to buildings or common areas in that community.
  8. All individuals who will be present for the in-person showing should[11] complete a verbal health screening prior to every showing,** which could be similar in scope to PAR Form COVID-HSA.

[9] To reduce potential in-person exposure it is reasonable to limit in-person showings to pre-qualified buyers so long as this policy is implemented consistently. (NAR Coronavirus: A Guide for Realtors®)

[10] MLS rules, available technology (e.g., showing services) and brokerage practice will determine the most effective way to provide notice.

[11] This is “encouraged” by state guidance, but not required. (Real Estate Guidance)

Showings, Walkthroughs and other Buyer Visits

  1. Agents and buyers must comply with any showing instructions provided by the seller. If they do not, the showing should not occur.[12]
  2. When performing any in-person real estate activities, all participants must utilize sanitizer and wear masks/face coverings.** Bring plastic bags for disposal and remove all personal protective equipment or other items brought to the property.
  3. Agents should not leave brochures, flyers, business cards, etc. in the property. Any marketing material should be provided virtually or by mail where possible.**
  4. Agents and buyers should use their own separate transportation to the property.**
  5. No more than 3 visitors should be present any visit (e.g., one agent and two buyers).**
  6. Sellers should vacate the dwelling during the showing but may remain outside on the property, exercising appropriate social distancing.[13]
  7. For occupied properties, Sellers should leave lights on, and leave interior doors, drapes and blinds open to limit the buyer’s interaction with those items. For vacant properties, the listing agent should either ensure these tasks are taken care of prior to the showing or provide instructions for the buyer’s agent to do so.
  8. Avoid physical contact within the property. For example, if doors and curtains are not open do not open them unless absolutely necessary. If something must be touched (e.g., a door must be opened to access a particular area of the property), limit the number of people who touch that surface. If there is a specific issue of importance for the buyer, coordinate that request with the seller prior to the showing (e.g., if the buyers are concerned about closet space, make a specific request that closet doors be left open).
  9. Maintain social distancing guidelines at all times. If an area is too small to ensure appropriate distancing, stagger entry and exit.[14]
  10. After every showing, buyers and buyer agents should do any cleaning/sanitizing agreed-upon as a condition of the showing instructions, and any person utilizing the lockbox should sanitize the lockbox, key, and doorknobs used for entry.[15]
  11. Minimize the time spent in the dwelling or at the property by having post-showing discussions with buyers away from the property, via remote means (email, video conference, telephone, etc.).

[12] Where any of these restrictions are required by state or federal guidance, it would be a violation to allow access without following those rules. Further, it could be an ethics violation to allow property access on terms other than those established by the seller or listing broker. (NAR Code of Ethics, Standards of Practice 1-16 and 3-9)

[13] Only 3 individuals are permitted in the property at one time.

[14] For example, if a powder room is not large enough for two people to enter and easily maintain a 6-foot distance, the first should enter and exit, then the second.

[15] Other than asking the party that uses a lockbox to sanitize it, these guidelines take no position on whether the buyer side or seller side should be responsible for cleaning and sanitizing any part of a property before or after a showing. Agents should discuss this issue for every transaction to ensure clear communication between the parties.

Contract negotiation

  1. Utilize remote means (email, video conference, telephone, etc.) to discuss contract terms with clients whenever possible.
  2. Prepare, deliver and execute contracts electronically or by mail whenever possible.

Other service providers

Most real estate transactions involve the services of multiple service providers, including property inspectors, appraisers and contractors, among others. Some of these services can be provided remotely in part, but to protect the interests of the buyer and seller, at least some in-person activity is generally necessary. Real estate brokers and agents function as a conduit between the consumer and the service provider(s), but cannot control the actions of those providers.[16]

  1. All individuals who will be present for any in-person activities should[17] complete a verbal health screening prior to the activity,** which could be similar in scope to PAR Form COVID-HSA.
  2. Agents and service providers should utilize sanitizer, and wear masks/face coverings.** Bring plastic bags for disposal and remove all personal protective equipment or other items brought to the property.
  3. Sellers should provide any additional access restrictions through the MLS or directly to buyers or buyer agents, and buyers should share those instructions with the providers they select.
  4. No more than one real estate professional and two service providers may be present inside a property at any time.**

[16] When parties select service providers, agents should ensure that their clients have the relevant information so those providers understand any rules or restrictions that are in place.

[17] This is “encouraged” by state guidance, but not required. (Real Estate Guidance)

Closings/Settlement

  1. Agents should not attend settlements unless they are essential to the settlement process. **
  2. Advise clients and settlement providers to provide advance copies of documents to agents for review prior to the scheduled settlement date and execute any documents remotely if possible.
  3. Attendees should utilize sanitizer, and wear masks/face coverings.**

[18] Though remote notarization is available, check with lender, recorder of deeds and others to ensure acceptance.

Dealing with a positive COVID-19 test

  1. Where an agent becomes aware that an individual who has tested positive for COVID-19 has been at the property, advise the seller to utilize the cleaning and sanitation guidelines for businesses required by the most recent state and federal guidance regarding cleaning or the notification of others who have been in the property (see Resources, below).
  2. If notified that an individual who has tested positive for COVID-19 has been in the property, brokers and agents will cooperate with their clients to assist in the notification process as required by the most recent state and federal guidance.

[19] All businesses are required to develop a response plan if they are exposed to a probable or confirmed case of COVID-19. (General Business Guidance) Brokers must develop a detailed plan for their office location and should utilize similar tactics in developing a plan for potential exposure at a seller’s property. (See NAR Sample Preparedness Plan) (rev. 7/10/20)

Office operations

In red and yellow-phase counties all office operations should be conducted according to the Real Estate Guidance and General Business Guidance documents (whichever may be stricter in any particular circumstance). As a baseline, the following procedures should be implemented:

  1. All agents and employees should be encouraged to work remotely as much as possible.
  2. All real estate offices will adhere to relevant guidance and will: [20]
    1. Separate work areas to maintain social distancing, including different supplies at each work area to prevent the continued shared use of the same office materials.
    2. Utilize hand sanitizer upon entering the building.
    3. Employ protocols to have employees or cleaning staff clean/sanitize surface areas in the office when they arrive and before they leave. These areas should include, but are not limited to, computer, keyboard, telephones, printers, and any other office supplies used.
    4. Employ CDC-compliant protocols to clean/sanitize high touch areas in spaces that are accessible to agents, employees or visitors.
  3. Do not bring any food to prepare and/or to share with others in the office. Sanitize kitchen areas after use.
  4. Any client or customer visits to the office should be by appointment only.
  5. Any agents or employees that are sick with coughing, fever and/or other symptoms of COVID-19 should stay home. Consider having agents and employees complete a health screening questionnaire similar in scope to PAR Form HSA prior to resuming work.
  6. Any agent or employee who tests positive, is in a household where someone has tested positive, or has been informed of having been at a location where someone has tested positive, will alert the broker and/or office manager and will follow all current CDC criteria for self-isolation before attempting to return to work.

[20] General Business Guidance

Consistency

All policies will be implemented consistently across all groups of clients and customers to avoid any appearance of discrimination against any protected classes.

Transactions other than residential sales

Any in- person real estate services in transactions other than residential sales (e.g., residential leasing, commercial sales and leasing) should be provided in a manner that is consistent with the general guidelines laid out in this document and the relevant state and federal guidance, with additional precautions based on the unique requirements of those transaction types. Brokers should consult guidance provided by entities that focus on these types of transactions for more specific information, including but not limited to theInstitute for Real Estate Management (IREM) or the CCIM Institute (CCIM).

Residential leasing

  1. Advise landlords to consult with their counsel about the specific lease terms affecting the ability to show occupied rental units, and the relevant CDC and Department of Health rules that are in place at the time.
  2. Conduct as much business as possible via remote means. This could include creating virtual tours of listed units (or similar model units) and conducting virtual showings with the current resident or an agent providing video.
  3. If the property is currently occupied, review the lease terms related to showings and consult with tenants regarding appropriate methods to show the property that maintain compliance with relevant health standards.
  4. All marketing, showings and contract negotiation should follow the best practices otherwise laid out in this document.

Commercial real estate

  1. Whenever possible, occupied commercial properties should be toured after hours or when there is a minimum number of employees on-site. Ensure that any in-person activities comply with maximum occupancy rules in the General Business Guidance.
  2. If a commercial property presents other risk factors (e.g., highly trafficked site, food service, etc.), additional precautions specific to those risk factors must be utilized.
  3. Consult resources from Institute for Real Estate Management (IREM) or the CCIM Institute (CCIM) for additional guidance.

Resources

Various governmental agencies and trade associations are issuing requirements, guidance and information. The list below is not comprehensive but provides some of the most commonly cited references that may be of assistance in drafting a brokerage policy.

Several areas of this guidance reference following “the most current” information from certain governmental sources rather than citing specific documents. This has been done to avoid the need to continually update the guidance as governmental mandates change over time. Brokers are responsible for periodically reviewing these mandates and adjusting their brokerage policies accordingly.

  1. Centers for Disease Control and Prevention (CDC) resources
  2. Occupational Safety and Health Administration (OSHA) resources
  3. Pennsylvania Department of Health (DOH) resources
  4. Pennsylvania Department of Health (DOH) FAQ re: business operations
  5. Pennsylvania COVID-19 resources for businesses
  6. “Plan for Pennsylvania” guide to reopening Pennsylvania
  7. May 19, 2020, “Guidance for Businesses in the Real Estate Industry Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (Real Estate Guidance)
  8. May 4, 2020 (last updated June 1, 2020) Guidance for Businesses Permitted to Operate During the COVID-19 Disaster Emergency to Ensure the Safety and Health of Employees and the Public” (General Business Guidance)
  9. May 27, 2020 “Order of the Governor of the Commonwealth of Pennsylvania for the Continued Reopening of the Commonwealth” (Green Phase Order)
  10. National Association of Realtors® (NAR) resources
  11. Pennsylvania Association of Realtors® (PAR) resources
  12. Institute of Real Estate Management (IREM) resources
  13. CCIM Institute