OREA fought to make sure your services as REALTORS® were deemed essential by the Province. But it’s not business as usual. Real estate was deemed essential so you could continue to serve clients who were closing transactions or who urgently needed to sell or buy property.
On that note, we have received many questions from Members about whether or not the essential business designation extends to include photographers, videographers, stagers, cleaners and home inspectors.
To help guide our Members during this incredibly challenging time, OREA has obtained a legal opinion on whether photographers, videographers, stagers and cleaners (referred to as “Service Providers” in this e-mail) can provide services to REALTORS® given that Ontario has ordered all places of business to close, except those on the ‘Essential Business’ list (referred to as the “Order”). Home Inspectors have received their own legal opinion and the Ontario Association of Home Inspectors has advised that “OAHI’s corporate counsel has confirmed home inspections are still essential ‘in the context of a real estate transaction process…’” during the State of Emergency. Their letter can be found here at: https://www.oahi.com/english/news/update-april-4-home-inspections-a-an-essential-service-in-ontario.htm
Here’s what you need to know:
Yes, Service Providers such as photographers, videographers, stagers and cleaners may generally be able to do what they need to do at the Seller’s home in support of a real estate transaction.
Service Providers would fall within the “Essential Business” category of Supply Chain businesses that supply another Essential Business, namely the real estate agent services. However, at least the following steps are required:
- The REALTOR® (and not their client) contracts with and retains the Service Provider’s services;
- Especially in the case of videographers, cleaners and stagers, the REALTOR® has appropriately contracted with their client to provide the client with those services;
- Only people absolutely necessary attend; and
- All other Emergency Orders and laws are followed (e.g. no more than 5 persons on the property etc.) including local public health authority guidelines.
This is based upon Ontario’s Emergency Orders in place April 9, 2020. As the COVID-19 situation is constantly changing, please note that the rules can change at any time.
Most importantly, because the condition and characteristics of the property, the market and the specific contracts a REALTOR® may have with both the Service Provider and their client are unique and the behaviour of both the Service Provider and REALTOR® are also contributing factors, this document can only act as a ‘general guide’. An absolute answer requires consideration of all of these factors on a case-by-case basis.
Finally, the responsibility rests with the Service Providers to comply with any Emergency Orders and the law when providing their services. A REALTOR® should not instruct the Service Provider to do anything a Service Provider does not consider to be legal.
Summary of Detailed Analysis:
The legal opinion OREA has obtained generally concludes that in an appropriate fact situation:
- The Order requires that “each person responsible for a place of business that is not listed in Schedule 2 shall ensure that the place of business is closed”[1] [Emphases added].
- Seller’s home or property is arguably not the Service Provider’s “place of business”.
- Furthermore, a Service Provider is unlikely to be responsible for the Seller’s home while there.
- A Service Provider that supplies other essential business or services is also an essential business or service if that Service Providers’ services are “necessary [for that other essential business] to operate”.
- “Real estate agent services” are currently an essential business.
- The Service Provider must supply the provider of the “real estate agent service” (i.e. the registrant/REALTOR®), not someone else, like the REALTOR®’s client. This will generally require the REALTOR® to directly contract with the Service Provider for their services.
- A photographer’s services should be considered “necessary to operate” for “real estate agent services”.
- The services of videographers, stagers and cleaners may also be “necessary [for a REALTOR®] to operate” provided this is ‘factually’ true. One element involved in establishing that this is factually true, is for the REALTOR® to contract for this service on behalf of their client. It will then be arguably “necessary” for the REALTOR® to retain those Service Providers.
The Ontario Association of Home Inspectors has separately advised its members that home inspectors should be considered Essential Businesses as a “[m]maintenance, repair and property management” service.
For more information please see a summary of the detailed analysis here and feel free to email info@orea.com with your questions.
Disclaimer. The information contained herein is not meant to be relied upon as legal advice by REALTORS®, or others. Members wishing further clarity or advice should seek independent legal advice specific to their circumstances. Due to the quickly changing regulatory environment during the COVID-19 emergency, this document may not be current or accurate by the time it is read.
The trademarks REALTOR®, REALTORS®, and the REALTOR® logo are controlled by The Canadian Real Estate Association (CREA) and identify real estate professionals who are members of CREA.
[1] Section 1(a), Schedule 2.