Real Estate Agent Q&A Series: COVID Vaccine Status and Home Showings

There are many times real estate agents have questions related to a challenge their client is facing. At Velocity Title, we work hard to help our agents navigate even the most complex scenarios. Our “Real Estate Agent Q&A Series” is a way to answer some of these questions, and offer advice to help move your clients forward. Our next topic in the series addresses prohibiting home showings for those not vaccinated.

Realtor Question:

My seller wants me to prohibit any potential buyers from entering their home if not vaccinated. What do I advise?

Answer to Realtor:

The COVID pandemic has brought very unique challenges and questions of law as it relates to health and healthcare privacy under the Health Insurance Portability & Accountability Act (commonly known as “HIPAA”). HIPAA generally provides people with a legal protection of having their healthcare and healthcare decisions remaining private and between themselves and their doctor. Additionally, and historically, people have well rooted and well-founded expectations that what they decide to do with their body and healthcare is up to them. They also feel their healthcare choices are between them and their doctor and no one else, not even the Government— “My body, my choice.” However, the Government and many private entities have thrown this fundamental right for which we’ve grown accustom right out the window when it relates to COVID-19.  As a result, a number of real estate agents are facing a new dilemma. Many of their clients are requesting only vaccinated people be allowed into their property for showings. The question is, what should these real estate agents do?

To be clear we are in uncharted territory and there are no laws on the books, nor recent precedent, to guide us. Thus, real estate professionals must walk cautiously so as not to find themselves on the wrong end of a real estate commission complaint or lawsuit from a disgruntled buyer believing they were discriminated against because of a healthcare decision.

As a general rule, a seller is prohibited from discriminating against any person in the showing of real property on the market for sale. For example, could a licensed real estate professional follow a seller’s instruction that their agent not allow any person with HIV to enter and view the home? Clearly not. As with HIV, over time cooler minds will prevail and people will likely realize that the throwing away of basic and fundamental privacy rights was ill thought out and maliciously applied. Real estate professionals should keep a level head and guide their sellers through the showing process in a way that is protective of all person’s rights to healthcare privacy and viewing prospective homes.

If, however, a seller is insistent on attempting to mandate a prohibition against non-vaccinated persons, a real estate agent cannot guarantee such a demand be met. The most a listing agent can do is place the request in the MLS and the seller—if they so choose— may place a sign at the door with their request. I caution any listing agent that if their seller makes such a request that the agent should have the seller sign an acknowledgement that the agent cannot guarantee that only vaccinated persons will enter the property. If, and until, legislation is passed concerning vaccination papers being required, a listing agent has no lawful right to ask for confirmation about someone’s vaccination status. Additionally, no potential buyer has a lawful duty to disclose their vaccination status. The consummate professional will help educate their sellers on the entire selling process which now includes showing the property during COVID.

You must walk the tightrope of having concern for your seller’s fears and how best to calm those fears without discriminating against any person in the showing of real property. If you do, you may find yourself in a court defending claims of discrimination in home buying.

A note from the author, Velocity Title’s Co-Founder, G.Russell Donaldson, Esq.

After researching I have not found any caselaw of a discrimination case relating to COVID but I anticipate seeing cases pop-up across the country if it becomes a practice that unvaccinated persons are deprived of their basic human right of participating in homeownership as a result of a healthcare decision.  This blog should not be taken as a position one way or the other concerning COVID vaccinations, but instead a legal observation concerning possible legal issues that are likely to develop as the nation grapples with the pandemic and the balancing of rights.

Keeping You and Your Clients Moving Forward

Velocity Title has the legal expertise to guide real estate professionals, buyers and sellers through the tough, and sometimes complex, legal issues relating to real estate transactions. After all, for most people this is the single biggest investment they make in a lifetime—so nothing should be left to chance. The Velocity Title team has combined experience of more than 190 years of real estate title work. Let our team guide you and your clients through even the most complex transactions. To learn more, click here or contact us today.

To check out other topics in our Real Estate Agent Q&A Series, clear here.