As you may know, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued guidance on operations and services that should continue during the COVID-19 response to ensure the continuity of functions critical to public health and safety, as well as economic and national security. In response to the efforts of the real estate industry, on March 28, 2020, CISA released updated guidance (Version 2.0) that now includes “Residential and commercial real estate services, including settlement services” within the list of essential services. As we have previously reported, Governor Hogan has issued several executive orders setting forth various business and travel restrictions in an attempt to control the spread of the coronavirus in the State of Maryland. Those executive orders incorporate CISA’s guidance, and thus Maryland’s COVID-19-related business and travel restrictions do not apply to “real estate services.”
However, this does not mean that it is business as usual for the real estate industry. Those who perform essential services, including those who perform “real estate services,” must still adhere to all relevant public health guidance and the decisions of State and local governments. Therefore, like all essential workers, those who perform “real estate services” should gather in groups of no more than 10 people, adhere to social distancing, and practice good hygiene (i.e., frequent hand washing).
While CISA’s guidance indicates that “real estate services” includes “settlement services,” it does not provide any clarification on the types of activities that fall within the scope of “real estate services.” Neither does Governor Hogan’s Amended and Restated Executive Order issued on March 30, 2020, which requires, among other things, Non-Essential Businesses to remain closed to the general public and Maryland residents to stay in their homes or places of residence except to conduct or participate in Essential Activities. Follow up guidance from Maryland’s Office of Legal Counsel indicates that conducting real estate closings or settlements is an essential activity for one’s self or household and is a permissible reason to leave one’s home or residence. Accordingly, Maryland’s travel restrictions do not apply to those who conduct or participate in real estate settlements, or to travel to or from real estate settlements.
However, the question remains, what other activities fall within the scope of “real estate services”?
In an attempt to provide clarity to real estate professionals who do business in Maryland, Maryland Association of Realtors communicated with public officials and issued an interpretation of the Governor’s Order in the form of frequently asked questions (FAQs). The FAQs indicate that the overall intention of the Governor’s Order is for Maryland residents to stay at home. Therefore, consumers should not leave their homes to attend open houses or visit properties. In fact, there should be no open houses, and to the extent possible, consumers should “tour” homes through virtual or video tours rather than in-person tours. Although consumers should not leave their homes, real estate agents are not prohibited from travelling to meet clients at their homes, provided that they adhere to social distancing and good hygiene. Furthermore, the FAQs indicate that real estate agents should limit their contact with others in the community, and they should not take any action which makes themselves or their clients uncomfortable or which may jeopardize the health or safety of themselves or their clients. Accordingly, to the extent possible, real estate agents should engage in electronic and virtual marketing, show properties through virtual or video tours, and conduct business by telephone or video conference.
Shulman Rogers is an essential business, and we will continue to conduct real estate closings as scheduled. To that end, our office remains open for parties to real estate settlements appearing to sign documents that require wet-ink signatures and acknowledgment by a notary. However, for the health and safety of our employees and customers, we are asking that only parties who are physically required to sign closing documents (borrowers, buyers, and sellers) attend the signing appointment. If requested, we are be able to coordinate remote access to the closing for lenders, real estate agents, and any other third-party advisers representing the parties. Moreover, we continue to monitor developments in the implementation of Remote Online Notary (“RON”), and we will be working with the vendor Notarize to facilitate closings by RON where applicable.
For more information regarding our Residential Real Estate Settlements Group or our general real estate transactions and litigation practice, please contact us at settlements@shulmanrogers.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
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