As the state COVID-19 business restrictions are being lifted, PAR is still working to get clarification on some of the inconsistencies that still exist in the various guidance documents. This may look similar to last week’s article, but we’ve got a few small updates for you today based on newly updated general business guidance and recent conversations with the administration.
Contact information for visitors.
The real estate guidance states that in yellow-phase counties “all businesses” must “maintain records of all appointments, including contact information for all participants.”
In a change from prior articles, PAR has secured clarification that so long as listing agents in yellow-phase counties have a record of all buyer agents who were at the property, it is reasonable for buyer agents to maintain the specific contact information for their buyers if that is necessary for later contact tracing. Or to put it another way, the state is not requiring buyer agents to provide buyer contact information to listing agents, so long as those buyer agents have the information and make it available if it becomes necessary.
There is no specific requirement to maintain contact information in green-phase counties… but one might hope that a buyer agent is getting the correct name and contact information for any buyer they take through a property just as a basic business practice.
Open houses are still prohibited in yellow-phase counties. For green-phase counties, the rules say 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. Because the green-phase business guidance does not explicitly ban open houses, they are likely permitted (though we are still discussing this with the administration). But listing agents should be exceedingly cautions about operating open houses, unless you’re willing and able to enforce the general safety rules. For example, to ensure social distancing, it may be necessary to limit the number of consumers allowed in the property, and/or to establish a flow through the property to ensure that consumers don’t end up in the same place at the same time. Depending on the size, layout and desirability of a property, it could take two to three agents to ensure that this is done well (remember that the state Real Estate Commission has indicated an open house can only be operated by a licensee).
Similarly, while there isn’t a specific requirement to maintain visitor contact information in green-phase counties, you should consider whether to more strongly enforce sign-in policies at open houses so you’re able to provide that information in the event it becomes necessary to do contract tracing. But if you are going to enforce getting legit names and contact information from consumers (OK…fine…I have used a fake name at an open house – you caught me!), you should also be sure to provide those consumers with a more obvious opportunity to opt out of future contacts. It is not going to go over well if you require a phone number or email “for safety purposes,” but then abuse it for marketing.
Wearing masks and other stuff that should probably be done, but that agents and buyers are trying to avoid.
If I’ve said it once I’ve said it a thousand times: Don’t Get Cute. We have heard from brokers and agents arguing that they don’t want to enforce mask restrictions at showings, so they (and/or their clients) are trying to pick apart the general business guidance to figure out ways to justify that position. And there are plenty of other thoughts about how to avoid some provision or another through creative interpretations of the guidance. Just stop it. Please. It is true that green-phase guidance no longer includes rules that specifically apply only to listed properties. Instead, the rules refer to the “premises” of a business where “employees” serve members of the “public.” We’ve heard (almost) every version of the arguments that try to pick apart these terms as they relate to real estate, but all those arguments miss the key underlying point of masks – they are for the protection of others. When an agent takes buyers through a listed property, the masks are not just to protect the buyers and agents from each other, but also to protect the property owners from anything they might leave behind. Regardless of your personal opinions or those of your clients, please remember to respect all the other individuals involved in the transaction by playing by the rules and, where there are potential discrepancies, by going along with the spirit of the rules even if the words are a bit unclear.
On Thursday, May 13, the Centers for Disease Control issued new public health guidance for fully vaccinated people. The key takeaway is that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal or territorial laws, rules and regulations, including local business and workplace guidance.” But before you get too excited, let’s break that down and see how it might apply to real estate practice in Pennsylvania.