Essential Services for Stay-At-Home Order

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FAQ

What does the stay at home order mean for real estate? What is permitted and what is not permitted?  Doesn’t the regulation say buying, selling and leasing real estate is permitted?

• Real estate agent services that do not host, provide or support any open house events remain essential businesses that may remain open. However, a new and separate requirement has been added. The person responsible for that business is obligated to ensure that any person who performs work for the business conducts their work remotely, unless the nature of their work requires them to be on-site at the workplace. They will need to assess whether that is the case for each employee. We expect that it is possible that those who make factually unreasonable decisions could be charged.

What are the NEW rules the Province has mandated around short-term rentals? We understood that they were permitted if they were pre-booked, but that doesn’t look like it’s the case now.

• Yes, that permission/exemption has been revoked. Short term rentals of discrete dwelling units, like cabins, cottages and a condominium unit, can only be provided to “individuals who are in need of housing”. Purely recreational short term rentals, where the renter has access to other housing, would not qualify. Hotels, motels, lodges, resorts and other shared rental accommodations may still provide short term accommodations. We expect that most Airbnb type of arrangements would not meet the shared rental requirement.
• Where an individual seeks a short term rental, such as an Airbnb, while they are out of town to receive medical treatment or caring for a family member who has to receive medical treatment, such as surgery, the situation is arguably different. The individual is permitted to leave their residence because they are leaving their residence to obtain “services that are necessary for the health or safety of an individual”, their family member. They are also “providing care or other support or assistance to an individual who requires support or assistance”. While out of town and away from their residence for this legitimate and permitted reason, our view is that they need housing because they are unable to get home. The person providing that short term rental could be advised that they are in need of housing in those circumstances and that the short term rental is not recreational in nature.
• With regards to Bed and Breakfasts (B&Bs), Whether a B&B is a shared rental accommodation must be determined on a case by case basis.  While the traditional form of B&B, where the home owner gives the guest a bedroom but shares the rest of their living spaces would seem to constitute “shared rental accommodations” it is unlikely what the Province had in mind, since it would not want that close living arrangement. Furthermore, that home would then constitute a business and the masks rules would apply, making the facility somewhat uninviting for most guests.

Can real estate brokerage offices or real estate board/associations be open during the pandemic?

• Brokerages can remain open so long as the person in charge legitimately determines that the nature of work done by those who work there “requires them to be on-site”. Those workers who can work remotely must do so.
• We have previously provided guidance on whether a real estate board or association office may remain open and that remains applicable to whether the office may open. The real estate board or association must similarly determine whether the nature of the work each employee carries out “requires them to be on-site” and those who can work remotely must do so.

Are REALTORS® permitted to travel to conduct business?

• They are required to remain in their residence unless the nature of their work requires them to leave their residence. If the REALTOR® is an employee, their employer can determine whether the nature of the individual’s work requires attendance at the workplace, consistent with their employer’s obligation to decide whether that is the case before allowing them to come to the workplace.
• PRECs would typically be the employers of the REALTOR® that is its controlling shareholder and would make that determination for the REALTOR® (and provide documentation as discussed below) and any other employees.
• Independent contractors are individuals and for the purposes of whether they should attend at the brokerage office, the brokerage would make the determination. They would individually determine if travel to properties for showings, inspections or other activities are required.

What are the rules around ice fishing huts?

• They may only be rented out if they are used only by the members of the same household AND are not used overnight.
• Persons exercising aboriginal or treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982 are the exception, and may rent ice fishing huts without limitation. When renting out an ice fishing hut to a person who claims this exemption, it would be wise to have the person sign a document certifying their assertion that they will be using the ice fishing hut in that manner.

What are the rules around construction and how might those rules impact buyer’s closing on new homes?

• Site preparation, such as excavation and grading, are still permitted.
• If a building permit has already been issued for a single family house, semi-detached house or townhouse, construction may continue.
• Construction can continue on condominium, mixed-use and other residential buildings.
• As a result, there is no law that necessarily prevents a new home from being constructed during this phase. However, it is possible that there could be delays due to factors beyond the builder’s control or because of other decisions made by the builder. Home buyer’s rights where there is delay will be governed by the specific contracts they entered into.

What is the government doing about residential evictions?

• They are being delayed in most cases. Unless the Landlord and Tenant Board or a court specifically requests or orders the expedited enforcement of an order to evict or writ of possession, no one is allowed to attend at a residence to enforce an eviction order or writ of possession.

Renovations are not permitted to start. But what about if it’s an emergency?

• Businesses which provide maintenance, repair and property management services that manage and maintain the safety, security, sanitation and operation of institutional, commercial, industrial and residential properties and buildings remain essential services and may continue to operate. The service provider can be referred to paragraph 35 of Schedule 2 (Businesses That May Open) of  Ontario Regulation 82/20 made pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.
• Furthermore, even businesses and places which are required to be closed can be accessed temporarily for inspections, maintenance and repairs. The service provider and property owner can be referred to subsection 1(6)(c) of Schedule 1 (General Rules) of Ontario Regulation 82/20 made pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

Are ancillary real estate services (i.e. staging, photography, home inspections) still permitted to operate?

• Our previous communication on those businesses which supply real estate businesses still applies as they remain an essential business, with one exception: The work carried out by the person who leaves their residence (whether to their office, to the REALTOR’S® office or to the property itself) must being doing work, the nature of which requires them to be on-site.
• Typically, it will be either that service provider or his or her employer, who has the responsibility or ability to make that determination, and not the REALTOR®.

Some Stay-At-Home Order Enforcement Options and Facts

• FactsEmployers who determine that the nature of a worker’s work requires them to be on-site at the workplace should consider issuing a letter on the employer’s letterhead certifying that to be the case. The address of the workplace should be clearly set out. This would make it easier for that employee to demonstrate why they have left their residence. A PREC could issue such a letter to the controlling shareholder in addition to the any other employees. Download here.
• Where the place of work is a brokerage’s office, we would suggest that the brokerage consider whether to issue such a letter to any independent contractors or PREC employees who the brokerage has determined needs to work on-site. Download here.
• We have produced an information card that OREA members can provide their clients about their ability to leave their homes for the purposes of viewing properties or to their REALTOR®’s office.
• We have also prepared an information card for your service providers about the regulations that may apply to their services.
• We have produced an information card that OREA Members can display should they be stopped or questioned by a police officer on the nature of their business.
• A provincial offences officer and the police are now entitled to demand and obtain the name, date of birth and address of any individual they have reasonable and probable grounds to believe have failed to comply with the emergency stay-at-home order or other emergency orders. Whether there are reasonable and probable grounds will depend on the circumstances.
  • Fines for individuals can reach a maximum of $100,000 and maximum fines for directors or officers of corporations are $500,000, with the courts being granted the power to increase the fine by an amount equal to any financial benefit acquired by the commission of the offence. Imprisonment of up to one year is also possible.

What are the rules around mask wearing when viewing a home in-person?

• The Regulation can be interpreted as making a client’s property that a REALTOR® is showing a place that the REALTOR® is responsible for ensuring masks are worn, particularly if the owner is not present and has turned over control of that property to the REALTOR®. It is thus advisable for the REALTOR® to insist upon mask wearing as a condition of entry to third parties and as a condition to providing his/her services to clients who choose to remain in the property during a showing.
• There is a new requirement that everyone is personally responsible to wear a mask that covers their nose, mouth and chin while they are indoors, which augments the existing requirement that the person in charge must ensure that. This means everyone, including your clients, other REALTORS®, those coming to view the property, ancillary service providers such as home inspectors, stagers or photographers have that responsibility and can be individually prosecuted and fined if they do not.

Disclaimer. The information contained in this post 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.