What Ohio's 'Stay at Home' Order means for real estate
By Peg Ritenour, Ohio REALTORS Vice President of Legal Services
Most of you are aware that on March 22 Ohio Director of Health Dr. Amy Acton issued a Stay at Home Order for all individuals living within the State of Ohio. This requires individuals to stay at their place of residence except as allowed in the Order.
The Order includes a lengthy list of essential businesses that are exempt, including professional services. Among those listed under this category are “real estate services.” Appraisals and title services are specifically listed as well.
This basically means that REALTORS can leave their home for the limited purpose of performing real estate related services. There are a lot of questions as to how the order applies to REALTORS’ day-to-day real estate activities. Unfortunately, the Order does not specify what can and cannot be done in the course of providing real estate services.
At this time it is not feasible for either the Governor’s Office or the Ohio Department of Health to provide detailed interpretations for all aspects of the Order, including real estate services. Instead, the responsibility to interpret the Order has been delegated to local health departments. This could result in variations in how various departments interpret the Order.
We have also been notified by Superintendent of the Division of Real Estate, Anne Petit, that neither she or the Real Estate Commission or the Appraiser Board have the authority to interpret or enforce the order. She is encouraging brokerages, appraisers and home inspectors to seek advice from their own legal counsel as to how the Order applies to their practice.
So the bottom line is that concrete answers to many questions REALTORS have are not addressed in the Governor’s Order and are subject to interpretation.
Having said this, Ohio REALTORS will attempt to provide you with the guidance possible to assist you in complying with the Stay at Home Order. Some things are clear from the Order, but unfortunately there are several gray areas. As was stated in the Governor’s daily briefing, businesses need to look at this as a two tiered analysis: not just whether you are an essential business, but secondly -- and more importantly -- can you safely comply with the requirements and intent of the Order? Because local health departments are being overwhelmed, Lt. Governor Jon Husted stressed that businesses need to make many of their own decisions regarding what activities they can perform under the Order and exercise common sense and their own best judgment.
Based upon this, in some areas brokerages will need to make policy decisions that they feel comfortable with to assure the health and safety of their clients, agents, staff and the public. Brokerages and individual REALTORS certainly want to make responsible business decisions that contribute to stemming the spread of COVID-19 and communicate to the public their commitment to this effort. While Ohio REALTORS can provide some guidance, it cannot take the place of your legal counsel.
Here’s what we know
- As stated above, professional services, including real estate services, have been declared an “essential business” and therefore are not subject to the Order. This means REALTORS may leave their homes to perform routine duties that fall under the umbrella of “real estate services” such as going on listing appointments, showing properties (see below for more on this), meeting with clients, attending closings, providing property management services, etc. However, REALTORS need to decide if they can meet the requirements below.
- When performing these services REALTORS must adopt required measures outlined in the Order and the social distancing guidelines. These include maintaining at least six-foot social distancing from other individuals, washing your hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer with the suggested percentage of alcohol content, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces in properties, your car, office, etc. and not shaking hands. In addition, brokerages must take the following required measures, where possible:
- Designate six-foot distances. Designating with signage, tape, or by other means six foot spacing for employees/agents, clients and customers in any line to maintain appropriate distance (i.e. at an open house);
- Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
- Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
- Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
- Other permitted professional services that are considered essential businesses include appraisal, title, accounting, legal and insurance services. Financial and insurance services can stay open as well.
- Individuals engaged in “critical trades” are considered an essential business. This includes, but is not limited to: “plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences….” Thus, these individuals or companies are permitted travel to your listing or the property you manage to service properties, make repairs, etc.
- Persons are permitted to leave their home to provide services regarding “essential infrastructure.” This is defined in the Order to include business and housing construction, as well as building management and maintenance.
Here’s what isn’t so clear
- Whether home inspectors are exempt from the Stay at Home Order. Home inspectors are not specifically listed as an essential business in the Order. While “real estate services” or “critical trade” could be interpreted to include home inspectors, the Ohio Division of Real Estate (which now has jurisdiction over home inspectors) does not have the authority to make that interpretation. Instead, home inspectors are being advised to consult with their own legal counsel.
- Photographers, videographers and stagers aren’t specifically exempted. Possibly their services could be considered to fall under real estate services, but that is a decision they will need to make.
- Whether buyers are in violation of the Stay at Home Order if they travel to attend a showing or an open house. This issue is the number one question received by Ohio REALTORS and something that REALTORS in other states with such orders are grappling with as with well. The Order in Ohio provides that individuals can only leave their home for five listed essential activities. Attending showings or open houses are not included. However, a document posted by the Department of Health - COVID-19 Information on Stay-Home Order Ohio’s Response to COVID-19 could be interpreted to allow this. This document provides as follows: “Public travel is prohibited, with these exceptions: … Any travel related to the provision of or access to essential activities, essential governmental functions, essential businesses and operations, or minimum basic operations.” (Emphasis added.) Because real estate services have been included in the Order as an essential business, it can be argued that this allows the public to travel for the purpose of receiving real estate services, as well as other business services deemed essential (i.e., title, legal, insurance, banking services.) Based on this argument, the Order could be interpreted to allow individuals to travel to access real estate services such as viewing properties available for purchase or lease, meeting with REALTORS, attending inspections, participate in a closing, etc. Because the interpretation of the Governor’s Order is up to the local departments of health, REALTORS are cautioned about interpreting the Order or advising the public about whether the order allows them to travel for showings and other real estate related services. Doing so could be considered the unauthorized practice of law. Instead, allow buyers to make their own decisions and refer them to their own legal counsel about whether they are permitted to travel for these purposes.
- While open houses aren’t specifically banned by the Governor’s Order, most prudent sellers won’t want others in their home and it is doubtful that many buyers would want to attend anyway. Even if the seller wants the listing agent to hold an open house, individual agents and brokerages are not required to risk their health and can refuse to do so. If an open house is conducted, per the Order, all social distancing measures must be put in place and any gathering of more than 10 persons is prohibited. Guidelines from NAR on open houses can be found here.
To conclude, the COVID-19 virus and the Stay at Home Order require all Ohioans and businesses to make changes and adjustments to their daily lives and business practices. REALTORS are no different. Brokerage practices need to be re-evaluated in light of this pandemic. For example, brokerages should consider establishing policies requiring agents and staff to work from home, and to conduct meetings by phone or other teleconferencing methods. Luckily technology provides a variety of means for REALTORS to communicate with one another, clients and other persons involved in a transaction in a way that does not involve being physically present with one another.
Brokerages may also want to consider no longer allowing agents to conduct physical showings and open houses, and instead take advantage of seller-assisted videos, photos or virtual tours. Thought should also be given to public perception if you allow open houses during this time. From a public relations standpoint, holding an open house may not send a favorable message regarding your brokerage’s commitment to public safety. Also, the last thing you or the seller want is a neighbor calling the police to shut down your open house because they believe it is a violation of the Governor’s order and footage of that being on the evening news.
Some brokerages are making the tough decision to suspend most activities, other than closing out pending transactions. These decisions, including those about showing properties and holding open houses are not easy and are independent business decisions that each brokerage and agent needs to make. In making them, brokers must weigh many factors including the impact on your business, the risk of liability, your duties to your clients and most importantly, the health of your clients, agents and staff and your civic duty to help limit the spread of this deadly virus to the public.
More information and FAQs can be found on the Coronavirus Resources for Ohio REALTORS webpage that has been developed. Continue to monitor this site daily for updates.
Legal articles provided in the Ohio REALTORS Buzz are intended to provide broad, general information about the law and is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
