Just the FAQs: COVID-19 and Liability

Over the last several weeks, the Georgia REALTORS®’s (“GAR”) COVID-19@garealtor.com email has received dozens of emails to which our staff has been diligently responding. With the Shelter-in-Place executive order being lifted for the majority of Georgia residents, we have received several inquiries regarding what is required of agents and brokers moving forward and whether hold harmless agreements and/or other acknowledgements are necessary to protect real estate licensees from liability.

GAR Staff met with the Forms Committee Chair and Vice-Chair to discuss whether there was a need to create a hold harmless form or special stipulation or any other acknowledgement form as it relates to COVID-19. Understanding that the likelihood of a real estate licensee being held liable for a customer or client contracting COVID-19 is extremely low, the Chair and Vice-Chair asked that an FAQ be provided to address many of the questions that continue to be asked.

 While GAR is not currently providing any additional COVID-19 related forms, brokers always have the option for their legal counsel to draft forms for their agents to use in their transactions.

 FREQUENTLY ASKED QUESTIONS ABOUT COVID-19

Answers by Seth G. Weissman, GAR General Counsel

  1. As a listing agent, am I required to disclose to buyers that the seller has or had COVID-19?

A seller owes a general duty to keep his or her property safe for people invited onto the property including potential buyers. Therefore, if a seller has an active case of COVID-19, he or she should not allow anyone onto the property since doing so might not be safe. REALTORS® owe a similar duty to disclose hazards on the property to buyers. If the REALTOR® knows that the seller has an active case of COVID-19, the REALTOR® also likely owes a duty to disclose this to potential buyers. Some REALTORS® have asked whether HIPAA or the Health Insurance Portability and Accountability Act prevents REALTORS® from disclosing a person’s medical condition. This law applies to health care professionals but not to REALTORS®. As a result, REALTORS® may disclose this information.

With respect to a duty to disclose that the seller had COVID-19 in the past, the question for REALTORS® is whether it is now safe for visitors to be in the house? If the property has been thoroughly cleaned and a sufficient time period has lapsed for any lingering virus germs to have died, there is not likely a duty to disclose.

  1. Can I be held liable as the listing agent if the seller claims that he or she contracted COVID-19 from a buyer to whom I showed the property?

While in the law, we never like to say never, it is highly unlikely that a seller could successfully win such a claim. In all likelihood, a court would find that the seller assumed the risk of contracting COVID-19 when the seller listed the property during a pandemic involving a highly contagious disease knowing that potential buyers with the virus might be viewing the property. Assumption of risk is a well-accepted legal defense in Georgia where if the plaintiff knows the risks of a course of conduct, the plaintiff is viewed to have constructively consented to those risks.

A client who signs the GAR Exclusive Seller Listing Agreement also agrees to limit the liability of the REALTORS® to the amount of the commission the REALTOR® is paid in a transaction or if no commission is paid then to $100. While it would be a case of first impression in Georgia, the limitation of liability should apply to a COVID-19 damages claim.

  1. Can I be held liable if a buyer claims to have gotten COVID-19 from seeing my listing?

The same assumption of risk defense discussed above would apply here as well. With the daily barrage of news on COVID-19, it would be hard for a buyer to argue that he or she was unaware of the risks of getting the COVID-19 virus whenever the buyer interacted with people or was on someone else’s property. While the limitation of liability would not apply to claims brought by a buyer (since it only protects the listing agent against claims brought by the seller), the buyer would also likely have a difficult time proving where he or she contracted the virus.

  1. Am I allowed to ask a buyer or seller if they have or had COVID-19 and am I required to keep their answers confidential if they so direct me?

Yes, a REALTOR® is allowed to ask buyers or sellers if they have or had COVID-19. Of course, nothing requires buyers or sellers to answer this question. If a client had COVID-19 and now asks you to keep that information confidential, you must keep the confidence under BRRETA unless you are required to disclose by law. Being required to disclose by law should include the obligation to disclose known hazards to buyers. Therefore, if a seller has COVID-19, the duty to disclose should trump the duty to keep the seller’s confidence. However, if the person no longer has the virus, the house has been cleaned and some reasonable period of time has passed for any lingering germs to die, then the duty to keep the confidence would likely prevail.

  1. As a listing agent, what kinds of things can I do to practically limit the risk of a buyer getting COVID-19 in one of my listings?

Prior to a showing, listing agents should turn on lights in the different rooms and open as many doors as possible to make it easier for a buyer to tour a home without touching too many things. If you or the seller can find gloves and/or masks, a courtesy pair or two should be left by the front door with a note saying, “For your protection and ours, please wear a mask and gloves while touring this home.” If you don’t have access to these things, writing a note to this effect in the multiple listing service in which the property is listed should help reduce the risk to buyers of actually contracting COVID-19. Masks and gloves are likely going to be part of the new normal for a while.