No. Per additional guidance from the Real Estate Board of New York’s legal counsel, in-person showings by agents are absolutely not permitted while “Governor Cuomo’s Stay at Home Executive Order is still in place. Real estate licensees are expected to work from home. Any licensed activity that a real estate licensee engages in which requires the real estate licensee to have in-person contact with others is not permissible under this executive order.”
With that said, per guidance from the New York State Association of Realtors (NYSAR), showings by FSBO sellers and by sellers under limited service listing arrangements are allowed, provided that the seller insists on showing the property directly to the buyer, and the listing agent only furnishes the necessary contact information for the seller to do so directly.
However, we cannot advise FSBO sellers and flat fee MLS listing sellers to continue showing their homes during the pandemic as it violates the spirit of Governor Cuomo’s New York State on Pause executive order.
Keep in mind that Real Estate Board of New York (REBNY) members are predominately based in NYC, whereas NYSAR members are distributed throughout the rest of the state where population densities are less.
As a result, REBNY counsel necessarily will have a stricter interpretation of Governor Cuomo’s decrees vs NYSAR. Official guidelines regarding showings by licensees have been released by REBNY here.
Yes, per guidance issued by the New York State Department of Economic Development, real estate brokerage is an essential professional service with extensive restrictions:
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).
While some brokers have interpreted this to mean that in-person showings can resume, this is certainly not the case as REBNY has clarified.
The New York State Association of Realtors backs up REBNY’s view by saying that licensees cannot have in-person contact with a member of the public and that:
Empire State Development (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.
Pro Tip: REBNY legal counsel believes that many real estate brokers have misinterpreted the government’s guidance on allowing “virtual showings” to mean that they can travel to a property and host a video-conference at the property. REBNY believes the more conservative view that follows the spirit of Governor Cuomo’s executive order is to not travel unnecessarily at all, especially in dense urban areas like NYC, as every time you leave your home you put others at risk. The NY Department of State has already received many complaints against real estate agents for failing to comply with Governor Cuomo’s decrees.
Yes. The guidance from Empire State Development only applies to businesses and not members of the public. Per the New York State Association of Realtors:
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.
This means traditional For Sale By Owner sellers are not restricted from interacting with members of the public, i.e. showing their property.
In the case of an Assisted FSBO listing, where a seller pays a flat fee for an agent to list his or her property on the MLS, an agent must abide by his or her fiduciary duty to the client and dutifully hand over contact information of the buyer if the seller insists on continuing to show the property by owner.
Keep in mind that open houses are still prohibited, and many public search websites will not allow the posting of open houses anyway during the pandemic.
If you are a FSBO seller or an Assisted FSBO seller and you still choose to allow carefully vetted buyers to view your property via private showings, then we recommend reviewing the following safety procedures:
Social distancing: Consider conducting meetings and events via phone or video conference.
Sanitation: Clean and disinfect all frequently touched objects and surfaces, per CDC recommendations.
Hygiene: Wash your hands frequently with soap and water. If not available, use hand sanitizer with alcohol.
Request buyers to wear PPE such as a face mask or latex gloves and to avoid touching anything as much as possible.
Request buyers to wear disposable “booties” over their shoes before entering your property.
If you, the buyer or a member of either party’s household is ill, stay home and avoid physical contact with others.
Seek help: Call the NYS Novel Coronavirus hotline if you suspect exposure (1-888-364-3065).
Present the COVID Disclosure Form to anyone before they enter your home.