Can Seller Require Proof Of Vaccine Before Allowing Access to the Home?
Since there have been no simple answers with anything related to the Coronavirus in nearly two years, it seems gracious to give a win when possible. There is a simple answer to the question asking IF seller can require proof of vaccine before allowing entry to seller’s home. Yes, seller can make that requirement. Of course, as is true with everything related to this pandemic, the devil is in the details and when politics, religion, real-life impacts, science, money and anything else important to you is considered, the answer is anything but clear if the question is: “should a real estate broker agree to assist the seller who demands that only fully vaccinated individuals be permitted access to seller’s home?”
As a side note, in reflecting on what our world and our industry have endured for the last two years, consider the two over-riding factors that generate the subject matter for this article. 1) For nearly two years, the world has been gripped and ripped apart by a pandemic that created nationwide challenges and stresses never experienced in American culture. 2) For more than a year, our industry has experienced record-setting, nationwide and statewide inventory shortages that instill sellers with a bold confidence their home will sell on generous terms regardless of ANY barrier faced by potential buyers. Combine these two conditions and this article considers whether a seller can restrict buyers and the many individuals every buyer will call upon to assist buyer in the purchase of the property by imposing a barrier to entry precluding access to seller’s home by some 40% (as of the writing of this article) of the US population. In an industry where practitioners often say: “real estate law is as old as dirt” meaning that real estate law is slow to change, this article considers a question based on two factors that would have been dismissed as inconceivable 24 months ago. Before continuing to read, feel free to sit back, take a deep breath and appreciate what you as a practitioner, your clients as consumers and our world has persevered through the last two years.
Practically speaking... should a real estate broker agree to assist the seller who demands that only fully vaccinated individuals be permitted to access seller’s home?
It is head-ache inducing to consider the myriad questions broker will have to consider and resolve before fulfilling seller’s demand that only fully vaccinated people be given access to seller’s home. How, exactly, will broker fulfill a promise to honor that demand by seller? Would it be possible to honor that demand if a key box is placed on seller’s home? It seems unlikely. While listing broker can include limitations on entry in the written showing instructions included in the MLS listing, can listing broker promise that every broker accessing the house key will comply with the restriction on entry by those who are not fully vaccinated? Certainly not. As an industry, we know that not every buyer broker honors showing restrictions related to making showing appointments or calling before accessing the property. Simply put, showing instructions should be followed by every person holding an MLS key, but blind naivety would be required to believe that was the case.
If an MLS key box cannot be placed on seller’s home, how will listing broker provide access to seller’s home? Could listing broker require that potential buyer brokers retrieve a key from the listing office only after producing proof of broker’s and buyer’s vaccine status prior to taking the key? Yes. But, what if the vaccine records produced by broker or buyer are forged or otherwise fraudulent? What if an unvaccinated person joins the vaccinated broker and buyer on the home tour?
So then, must listing broker agree to meet every person at seller’s home before allowing access to seller’s home and require proof of vaccine status prior to entry? Perhaps. Still, broker cannot account for entry by a person who produces a fraudulent vaccine record. Must listing broker bar access to any person who fails to present proof... even if doing so puts broker in a position of personal harm? And what if an unvaccinated person somehow enters seller’s home on listing broker’s watch? Will that create liability for listing broker and/or the listing firm? Recognize that access to seller’s home will be restricted by listing broker’s schedule. If the home does not sell quickly, listing broker will undertake an obligation to provide access to seller’s home for weeks or months, depending on marketing time and regardless of the inconvenience this presents to listing broker.
Assume all of these challenges are addressed and seller finds a buyer and enters a purchase agreement. What if the buyer’s preferred inspector is unvaccinated? Will seller limit buyer’s choice of inspectors? If seller does that and the inspector buyer is relegated to using misses something during the inspection, will seller have liability? What if buyer’s lender’s appraiser is unvaccinated? Will seller render buyer’s ability to obtain financing impossible and if so, will buyer be in breach of the purchase agreement if buyer agreed to purchase without a financing contingency? What if seller agrees to perform an electrical repair and the only electrician who can meet seller’s repair deadline prior to closing is unvaccinated? Will seller breach the purchase agreement by failing to provide access to seller’s home for this electrical repair? Or worse, will seller choose to allow the electrician or the appraiser or the inspector into seller’s home, notwithstanding vaccine status, even though seller denied access to potential buyers on this basis? This question leads to the next broad discussion...
What about the Fair Housing Act? The simple answer that a seller may restrict access to seller’s home by all who are unvaccinated rests on the very old real estate doctrine that one aspect of real property ownership is the right of the owner to deny access to anyone. How does that relate to the Fair Housing Act prohibitions that prevent seller and listing broker from discriminating against any buyer or potential buyer based on the buyer’s membership in a protected class? It is true that “vaccine status” is not a protected class. It is not true, however, that seller and listing broker can disregard the Fair Housing Act in this analysis.
What about the buyer who has a religious objection to the vaccine? What if buyer has a disability that prevents buyer from receiving the vaccine? What if buyer has children under the age of 12 touring homes with them and the children CANNOT be vaccinated? Will seller and listing broker have a Fair Housing problem?
In answering this isolated question, consider an issue faced by property managers during the end of the Obama Administration. Some property managers screened applicants based on the applicant’s felony record. The US Attorney General enacted a policy that was adopted by the Washington State Attorney General. Property managers in Washington were sued by the Washington Attorney General who claimed a violation of the Fair Housing Act even though “felons” were not a protected class. The AG’s theory, now well ensconced in state and federal practice, was that a disproportionate number of people of color have a felony record so if a property manager precludes all applicants with a felony record, that policy will have a disproportionate (or disparate) impact on people of color. Of course, “color” is a protected class under the Fair Housing Act.
Consider the question posed in this article against the backdrop of that Attorney General action. As of the writing of this article, the Center for Disease Control reports that statistically, black people and Hispanic people have lower vaccination rates than white people. Does this mean that the seller who denies access to all potential buyers who are not fully vaccinated enacts a policy that will have a disparate impact on people of color? If so, then by enforcing the policy on seller’s behalf, listing broker will violate the Fair Housing Act along with seller. There is no way the Hotline lawyer can conclude with certainty, that enforcing a seller’s restricted access policy based on vaccine status is a violation of the Fair Housing Act. But, there is a good chance that it is. The chances of a Fair Housing Act violation increase exponentially if seller denies access to potential buyers based on vaccine status but allows access to unvaccinated third parties affiliated with the chosen buyer.
Is there another way to limit seller’s exposure to the virus while still exposing the home to the broadest pool of buyers?
Assume for a moment that seller and listing broker somehow successfully navigate both the practical challenges and the potential Fair Housing difficulties posed by this seller prohibition on access to all unvaccinated people. Might seller’s policy deny access to an unvaccinated person who would have been the buyer generating the most favorable price and terms for seller? Again, recall that as of the writing of this article, roughly 40% of the American population is unvaccinated. Is it possible that seller’s policy of denying access to all unvaccinated persons precludes purchase by a buyer who would have maximized the selling potential of the property? Of course it is. While seller is free to potentially reduce seller’s yield through seller-imposed policies, broker should advise seller of that risk before helping seller embrace a policy of denying access to all unvaccinated persons. If possible, broker should help seller create a solution that does not eliminate 40% of the American population as potential buyers of seller’s home.
What goal is seller attempting to accomplish with the proposed restriction? Is seller simply trying to limit exposure to seller, of the virus? If so, there could be another way of achieving this outcome? Harken back to pre-vaccine days when brokers and buyers viewed homes through masks and gloves. Remember when listing brokers had a home sanitized following open houses? Recall asking or being asked about symptoms prior to entering seller’s home? These protocols, and others, were implemented at a time when vaccines were not available and these protocols allowed sellers and buyers to proceed with necessary purchases and sales. Perhaps a less restrictive policy would allow seller to limit seller’s exposure to the virus while allowing exposure of the home to the largest pool of buyers and third parties essential to buyer’s purchase.
In reality, the answer to this question is anything but simple. The answer requires deep analysis and consideration of all the unintended consequences. Before agreeing to list for a seller who requires this policy, consult your managing broker. Perhaps you and your designated broker will need to consult your firm’s legal counsel. Is this a seller instruction that you can promise to uphold? Will you or your firm generate liability if there is a failing of seller’s policy, even if you engaged in best efforts to enforce seller’s policy? Broker and the firm should be satisfied that they can, in fact and reality, compliant with state and federal law, adhere to seller’s instruction before accepting the listing of seller’s property based on implementation of this seller policy.