Since March 22nd, New York State has been placed on “Pause” by Executive Order of the Governor. In that order, Real Estate was made non-essential and Real Estate Agents have not been allowed to show homes in any way since that date. On April 9th, the Governor made the Real Estate Industry (Attorneys, Appraisers, Surveyors, Inspectors, etc.) essential but with “Extensive Restrictions”.

14. Professional services with extensive restrictions

  •  Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
  • Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).

The first paragraph refers to attorneys while the second refers to the rest of the industry. The last sentence of the second paragraph mentions Real Estate Brokerages and Branches directly.
“and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).”
Any Real Estate Agent/Broker found violating the Executive Order is subject to extensive fines and possible loss of license.
In addition, insurance does not cover us while the Executive Order is in place.

The New York State Association of Realtors has had several conversations with the ESD about this guidance and offers the following guidelines:

Frequently Asked Questions

• Can I go to a property where nobody is present (meaning if individuals reside there, everyone has left the property) to view it or take photographs for a listing? (updated 5/7/20)
Yes, with the knowledge and informed consent of the seller. In the event that an individual is still at the property upon arrival or arrives while the licensee is there, the licensee should cease taking photographs/video and leave the property.

• Can a professional photographer and/or videographer take photos or video of a property? (added 4/29/20)
If the photographer/videographer has received approval for real estate photography as an essential business from Empire State Development (ESD) and provides a copy of such approval, the activity is permitted. Such approvals are on a case-by-case basis and it is currently NYSAR’s understanding that photography/videography as a whole has not been deemed an essential business, only those individuals receiving the letter from ESD.

• If I use the NYSAR COVID-19 Disclosure form can I perform in-person showings? (added 4/22/20)
No. In-person showings are prohibited under the Executive Order and using the form does not change that.

• Can a licensee travel to a property and unlock the door so a consumer may enter the property for an unaccompanied showing? What if the licensee unlocks the door and waits in the driveway or out in the road until the buyer leaves? (added 4/21/20)
No, NYSAR does not recommend that a licensee travel to the property in order to permit access to a member of the public. Any licensee choosing to travel to the property for this purpose is doing so at their own risk.

• Are we allowed to list properties and post them as “unaccompanied showings only”? (updated 4/20/20)
NYSAR recommends that licensees should not be involved in coordinating an unaccompanied showing. If the seller demands that buyer’s be permitted to view the property the licensee should not be involved in the process. If the seller instructs the listing agent to provide their contact information to the buyer, then the listing agent should do so. This should be the only activity the
listing agent performs. The listing agent should not be coordinating anything between the seller and buyer except for providing contact information.
The guidance from ESD only applies to businesses and nothing prevents members of the public from having in person contact so long as they maintain recommended health and safety measures. So nothing prevents a seller from permitting a buyer into their home as that is their choice much like they can under a FSBO or limited service listing. Since such activities are permitted among members
of the general public, a licensee providing the phone number is not acting contrary to the ESD guidance. The licensee is merely following the direction of their principle under their fiduciary duties.The licensee should advise the seller that all recommended health and safety procedures should be followed.

• Can a licensee perform an in-person open house? (updated 4/13/20)

• Can I have in-person contact with a member of the public? (added 4/9/20)
No. ESD has issued guidance that “real estate services shall be conducted remotely for all transactions”. Licensees must utilize alternative methods of conducting business to avoid person to person contact with members of the public. NYSAR is unaware of any scenario where a licensee would be “legally necessary” to have in-person contact.

• Can licensees still take a listing? (updated 4/9/20)
Yes. ESD has issued guidance that that “real estate services shall be conducted remotely for all transactions”. Licensees must make every effort and explore every alternative to avoid person to person contact with members of the public. This can be done a number of ways including utilizing alternate means such as virtual listing appointments, electronic transmission and signing of
documents. A licensee may also mail or use a courier (UPS, FedEx, DHL) to deliver documents to a consumer to sign.

• Can the purchaser be present during the inspection? (updated 4/9/20)
No, ESD has provided guidance that the inspector can perform the inspection but may only communicate with the purchaser virtually.

• Can I conduct a final walkthrough with the purchaser? (updated 4/3/20)
No. Pursuant to the most recent guidance from the EDC, licensees are prohibited from going to a property with their client or customer. NYSAR is recommending that the buyers and sellers speak with their attorneys about scheduling a final walkthrough without the licensee being physically present. The licensee may communicate with their client or customer via phone or video conferencing during the final walkthrough.

• Can a licensee perform in-person showings? (updated 4/3/20)
No. Pursuant to the most recent guidance from EDC, all showings must be done “virtually” by the licensee. When such “virtual” showings occur, the seller should leave the property so as to avoid person to person contact with the licensee.

At BrookHampton Realty, we appreciate the severity of the crisis this pandemic has brought us. We personally feel the economic impact. We also understand some clients may not agree with the Governors orders.

• If you disagree or feel you must see a property “in person” at this time, please understand we can not show it to you in person. Agents who are showing properties are violating the Governors Executive Order.

• We urge you to let us show you properties “Virtually Only” until the Governor reopens Real Estate in the next few weeks. We have state of the art virtual tools and have successfully sold properties without buyers entering the home.

• A buyer can still enter into a contract of sale without seeing the property.

• In addition to our Virtual Tours, the buyers home inspector can do a virtual walk thru. Your listing agent can do a virtual walk thru in addition to a virtual tour once the buyer has made an offer and the seller has accepted.

• Most likely, any closing will occur “after” New York reopens for Real Estate. Many Attorneys are adding language to contracts to cover a more extensive pre-closing buyer walk thru.

• If you disagree with the Executive Order and the guidance letters listed above and want to see a property please be aware that most sellers are just not showing their properties. We can not lock and unlock doors or schedule appointments until the restrictions are lifted.

• You should speak with your attorney have a risk assessment conversation and ask for a “guidance letter” from your attorney.

• Further conversation may require the signing of disclosure forms.

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