Here at PAR, we’ve been knee-deep in rules and “guidance” for the past few months, trying to make sense out of the various documents put out by the state as a result of the COVID-19 pandemic. As a number of counties now move into a new green-phase status, we’re once again working on how to interpret the confusing and sometimes contradictory information that’s being released. We still have several questions outstanding with state officials, but here’s where we are today…
On Tuesday, May 26, the governor issued a new order covering green-phase counties. Summing it up, businesses in green-phase counties are now required to follow the rules established in the Order of the Secretary of Health issued on April 15, 2020. Any later orders or guidance are no longer in effect for those businesses in green-phase counties.
For real estate, the most recent guidance document was issued on May 19. This document incorporates an earlier May 4 document that applies to all business operations. Both of these documents specifically say that they will no longer apply in green-phase counties, so you might think that this means nothing in the document still applies to you. But you’d be wrong.
Why? Because some of the restrictions in those documents are based on the underlying April 15 order that is still in effect. So even if it looks like certain rules are going away, they really aren’t – at least not completely. A few examples:
- Masks. The real estate guidance says that “every person present at a work site, business location, or property offered for sale” must wear a mask/face covering. That’s going away. But the April 15 order that’s still in effect says that a business must “require all customers to wear masks while on premises, and deny entry to individuals not wearing masks.” So even though the words have changed, the underlying rule on masks stays the same – wear them.
- Open houses. The real estate guidance prohibits “in-person group showings” such as open houses. That’s going away. But the April 15 order says that “where feasible, businesses should conduct business with the public by appointment only,” and where it isn’t feasible, must limit the number of customers and enforce social distancing, including signage. While that doesn’t explicitly ban open houses, it would be hard to argue that it is “infeasible” to operate without open houses – and also difficult to ensure that proper social distancing is enforced during an open house.
- Contact information for buyers. The real estate guidance states that “all businesses” must “maintain records of all appointments, including contact information for all participants.” This has been one of the most contentious rules in that document. And part of that rule really is going away. As noted above, there’s still a general requirement to “conduct business with the public by appointment only,” but there is no corresponding language regarding what exact information must be maintained by a broker. In green-phase counties then it’s still going to be necessary to keep some sort of record of your showing appointments, but there is no requirement for a listing broker to maintain contact information for buyers. Yay.
- Three people on property. The real estate guidance limits in-person activities to no more than three visitors – an agent and two others. That’s going away, but the April 15 order includes provisions requiring businesses to “prohibit non-essential visitors from entering the premises of the business” and to generally limit the number of people in a business location. So, while there will no longer be a specific cap of three visitors in a property, agents should do their best to limit any in-person activities to the absolute minimum number necessary.
- Health screenings. The real estate guidance document “encourages” agents to offer verbal health screenings to those who will be visiting a property. That’s going away, and there is nothing in the April 15 order regarding health screenings for customers.
Where does all this leave you if you’re in a green-phase county and trying to figure out how your business might change? For the most part, just read the Order of the Secretary of Health issued on April 15, 2020, for the rules that now apply. You’ll notice a lot that looks familiar, and a few things that are missing. The most important thing, though, is to use common sense in how you interpret this information. Just because you no longer have to do something, doesn’t mean it’s a bad idea to still do it anyway.
With that in mind at the moment, PAR will not be amending our published best practices except to possibly identify where certain requirements are now optional in green-phase counties. Those best practices recommendations have had any number of items that go beyond the minimum legal requirements, so we will maintain that document in a similar form for the moment so it still provides options to brokers and agents who wish to do more than the minimum.
And remember, everything in this article applies only to green-phase counties. All existing guidance is still fully in place for all red and yellow-phase counties.