Disclaimer: Real estate agents should seek additional guidance from their brokers, and brokers should seek advice from their legal counsel about their options and liability under all applicable orders and guidelines. The decision to continue with any in-person activities is at the discretion of each agent as directed by their clients and based on guidance from their brokerage. BRR, IR, NAR do not have the authority to prohibit or restrict real estate brokers from practicing real estate during an emergency, but remind members to make all business decisions in relation to their duties to the public, clients and consumers, and to other REALTORS® under the Code of Ethics, as well as their obligations under all local, state, and federal orders and guidelines.
Further, to help brokers craft policies and procedures under the Idaho Rebounds Plan, which should be amended based on the current stage, specifically for open houses and showings, BRR hosted a virtual forum with brokers on May 15, 2020. The following is a summary of the ideas shared by the brokers or from information sourced from NAR, IR, or the CDC. It is shared for educational and informational purposes only and is based on the restrictions that were in place at that time. Nothing in this article is official association policy, and the comments made by BRR’s legal counsel on the call were not intended to be nor should they be used as a substitute for legal advice regarding any specific circumstance. For additional resources, visit BRR’s Coronavirus Resource Page.
In their Coronavirus: A Guide for REALTORS® resource, NAR recommends requiring property showings by appointment, in lieu of open houses, to reduce the number of persons in a property at any given time; and, BRR encourages members to continue utilizing virtual and livestream open houses, and virtual showings and tours, and is not advising or recommending members conduct “traditional” open houses, especially not for occupied, resale properties; and, IR is still recommending members conduct home showings virtually or by appointment but has provided guidance for those sellers and brokers who give permission to resume open houses.
If you do decide to host an open house, you may be wondering if you are liable if someone gets sick. While we don’t know all of the possible outcomes, here are some ideas on what you can do to keep yourself and the public safe.
How will you address “vulnerable” people who want to attend an open house? How will you address agents and/or visitors who are ill or may have been exposed but want to attend an open house?
Agents cannot prohibit anyone from entering a home based on their personal determination that someone is “vulnerable” (as defined by the CDC) as it could violate fair housing rules. Visitors could be asked to sign IR’s new RE-19A release of liability form, keeping in mind, if you ask one visitor to sign the form, you must ask all visitors to sign to ensure compliance with fair housing. Read NAR’s Guidance for Fair Housing Compliance During the COVID-19 Pandemic for more information.
But sellers and agents can clearly set expectations that anyone who is currently ill, experiencing symptoms, or who may have been exposed to someone with the virus, is not allowed in the property, by posting signage with those instructions.
If a buyer is ill, showing symptoms, or suspects they have been exposed to the coronavirus, they should not be entering any property, relying instead on virtual tours or showings while they self-isolate per local, state, federal, and CDC guidelines. The group also discussed that if an agent is ill, etc., they should coordinate with another agent to handle any in-person showings or activities on their behalf, while they self-isolate, and conduct all other activities remotely.
How will you limit the number of visitors (including agents) while still ensuring that there is appropriate physical distancing and precautionary measures are taken?
Stage 2 of the order is written in such a way that “gatherings, both public and private, of less than 10 people, where appropriate physical distancing and precautionary measures are observed can occur,” are not prohibited, but, they are not explicitly allowed.
To this point, the group discussed that the order does not say you can now simply allow nine people to walk through an open house, and that agents are included in that number. They also discussed how the maximum number of visitors may vary per home, based on square footage or layout. For example, nine people (again, including the agent) may be able to easily move around a large home with an open floor plan but not so easily in a smaller home with many rooms or hallways.
To help with this, one broker said they were considering having two agents at each open house. One would be inside to conduct the tour and answer questions, while the other would be out front to qualify visitors as legitimate homebuyers and to manage the flow of traffic into the property.
How will you “maintain the six-foot physical distancing requirements?” How will you limit “close interactions” between visitors and items in the property (i.e. blocking off rooms, having only the agent open doors)?
As in many stores, you could place markers on the ground outside to manage visitors waiting to go in, or on the floors inside to provide visual reminders of the distance requirements, being careful not to use adhesives that could damage carpet, hardwoods, etc.
You could also consider staging and furniture placement to create traffic flows and create distance within spaces, especially in open layouts.
Another suggestion was keeping all lights turned on, doors and closets open, etc., and instructing all agents and visitors to leave the home as they found it, so that people aren’t touching surfaces as they turn things on, or open and close doors.
Baby gates were even suggested for certain doorways to limit access into a small bedroom, bathroom, or walk in closet, for example, keeping the door open so visitors see the space while reducing foot traffic.
How will you “provide adequate sanitation and personal hygiene” for agents and visitors to the open house? How will you provide for the use of “masks, face coverings, and gloves” by agents and among homebuyers?
This protocol was reiterated in IR’s recommendation on open houses, which encourages people to “wear masks when inside the home when appropriate.”
One recommendation was to provide pre-packaged and branded sanitation kits (booties, gloves, masks, hand sanitizer, etc.) to each visitor to use when in the home. You could then place a secure trash can outside the home for visitors to dispose of the used items.
This led to a question about whether or not visitors would be allowed to use the restrooms, or even the kitchen or utility sink to wash their hands. That would be up to the seller, and if they did allow it, maybe designate just one bathroom or sink for that purpose, and consider providing hand sanitizer and paper towels, and post signage about hand washing and personal hygiene.
How will you “ensure frequent disinfection of the [property] as well as regular cleaning, especially of high touch surfaces?”
The group discussed talking with sellers about their desires for handling this themselves, or, what practices they would like you or any buyer or agent visiting the property to do. Refer to the CDC’s guide on “Cleaning and Disinfecting Your Facility” keeping in mind the open house or any property you’re showing could be considered your place of business or facility in this context.
Another valuable resource is NAR’s Showing Guidance During Reopening with safety tips to help you before, during, and after showings and open houses; a PDF available through NAR’s Coronavirus: A Guide for REALTORS® resource.
The group also discussed IR’s recommendation that an agent should obtain permission from their broker and seller before hosting an open house. One broker said with that in mind, they are only allowing their agents to hold open houses upon seller request, not an agent’s insistence to do so. And while the following Q&A is mostly focused on open houses, these ideas could apply to most showings.
Looking for additional information? Visit BRR’s Coronavirus Resource Page as well as our Open House Alternatives During Coronavirus (COVID-19) blog post.
