Editor’s Note: As the impact of COVID-19 (coronavirus) is fluid, information in this article was correct at the time of posting and may be out of date at the time you are reading it. For the most up-to-date guidance on coronavirus, please visit PARealtors.org/coronavirus.
On Thursday, March 19, Gov. Wolf issued an order that all “non-life sustaining businesses” in the state should shut down to slow the spread of COVID-19. Per that guidance, all real estate sales and leasing businesses have been ordered to close their physical locations until further notice, although the order “does not apply to virtual or telework operations (e.g., work from home), so long as social distancing and other mitigation measures are followed in such operations.”
As we understand the governor’s order, then, real estate brokers and agents can continue to conduct whatever activities they can remotely, but should not be in an office and should likely avoid going to client homes to conduct business. Keep in mind as well that most other real estate-related activities are under similar restrictions, so almost all third-party providers (lenders, appraisers, inspectors, contractors, title companies and even attorneys) will be affected in some way.
PAR has already been in contact with state legislators and the Governor’s office for further clarifications and will provide additional information as it becomes available.
Given the substantial problems this order will create with ongoing transactions, PAR is releasing a brand new COVID-19 addendum to the agreement of sale (Form COVID) so parties can agree to postpone contractual deadlines while the impacts of this situation can be assessed. This form allows the buyer and seller to agree that in the event performance becomes impossible or impractical either party can unilaterally invoke an automatic extension of all deadlines (the default is 30 days) that have not yet passed, including the settlement date. For example, if the Agreement was signed just a few days ago, pretty much every deadline would have 30 days added. If the parties are just a few days from settlement the addendum extends settlement by 30 days but doesn’t reach back and reset the inspection contingency or other deadlines that have already passed.
This form is basically a pause button. It gives the parties a set time to figure out a backup plan without being under the gun with immediate deadlines, but it doesn’t change anything else in the agreement and – let’s be honest here – may not actually give the parties enough time to restart the transaction and close by the extended date. Once it becomes clearer how things are going, it is likely that the parties will need to make further adjustments and extensions.
Any more specific changes to the terms of a transaction should be negotiated between the parties, and can often be accomplished through the use of PAR’s Change in Terms Addendum (Form CTA). We have amended Form CTA to add more blank space and more deadline changes to accommodate likely issues.
Three important things to remember here:
First, “impossible or impractical” does not mean “difficult or a bit more expensive”. If the parties can close a transaction within the existing terms they may be obligated to do so. A settlement may be next to impossible today, but things can change between now and the closing date. If the parties find that they could close with a different title company, they may be obligated to make that switch in order to perform. This could raise all sorts of thorny legal issues, so parties should definitely consult with a personal attorney if they have any questions.
Second, this addendum (and any addendum) will require both parties to sign off. Once the parties have agreed that either can trigger a unilateral extension either the buyer or seller can make that happen, but don’t think that a buyer could just grab this form and declare a unilateral extension. If you already know that things need to be extended and the parties are willing, the better approach would probably be to go right to the CTA and do the necessary extensions.
Third, if you were to submit an offer in the current market environment, be sure to evaluate the timelines in the sales agreement given the current market and do your best to include realistic dates. This addendum could be included from the beginning of the transaction in case those timelines still can’t be met, but it’s not an excuse to just accept the contract defaults if you know they’re unrealistic from the start.
Many brokerages and private attorneys have also created their own forms to address these issues. You are free to use whichever is available to you and best suits your purposes but in no circumstances should licensees be writing their own addenda and engaging in the unlicensed practice of law. Please remember that changing the terms of the sales agreement can have a ripple effect, the extent of which we can’t know yet. As such, we implore you to send your clients to an attorney if they have questions about this or any addendum that will change the terms of their agreement.
The COVID-19 Addendum is going to be part of the forms library for a limited time and will be removed once the world has returned to normal and toilet paper is on the shelves again.
As a final note, PAR is also releasing a Wire Fraud Notice (Form WFN) that had been scheduled for release later this year. This is a fairly straightforward notice to clients that they should beware of various scams and wire fraud issues. Given the high anxiety at the moment and the glut of both real estate and COVID-19 fraud emails, we’re bumping up the publication date to help remind clients to be extra careful with their electronic hygiene too.
Vendors will have the forms available in the next day or two, but in the meantime, PAR members can access them for download from the Standard Forms page.
More detail on what you can do during the pandemic can be found on PARealtors.org/coronavirus and will be updated with more information as we get it. In the meantime, wash your hands.