During the rapidly evolving situation regarding COVID-19, Realtors® are the trusted resource to provide expert guidance tailored to each client and transaction. The most important thing to do right now is keep lines of communication open with your clients, fellow Realtors®, inspectors, appraisers, lenders and settlement agents. Under the Code of Ethics, your obligation to your client is primary while cooperating with other brokers, except when cooperation is not in your client's best interest.

While the situation remains fluid, lenders, settlement agents and court clerk's offices are still processing transactions. Lenders are currently processing loans, providing clearance to close and wiring funds to settlement agents. As long as bank operations continue, wire transfers for closings and disbursements are still possible.

By order from the Virginia Supreme Court on March 16, 2020, clerk’s offices are open to process e-recordings of deeds and deeds of trust.

Agents are encouraged to have candid conversations with their clients about whether this is the best time for them to buy or sell, taking all factors into consideration.

For listing agents working with sellers:

• Discuss with your clients the advantages and disadvantages associated with allowing showings, holding open houses, and, if a contract is ratified, whether the transaction will close on time. 

For selling agents working with buyers:

• Discuss the advantages and disadvantages associated with visiting properties for sale, attending open houses, and, if a contract is ratified, whether they will be able to obtain a loan and close on time. 
• After contract ratification, buyer’s agents should be communicating with inspectors, appraisers, loan officers and the settlement agent regarding whether they can meet deadlines and/or the settlement date. Buyer's agents should verify whether:
  • Inspectors and appraisers can perform on time
  • Lenders are able to wire funds and give a clear to close
  • Settlement agents are able to record deeds and deeds of trust and disburse funds.
• If the buyer needs an extension on any of these dates, promptly communicate that to the listing agent and execute a written addendum extending the deadline. Extension of deadlines and the settlement date is up to the mutual agreement of the parties, but sellers may be more likely to grant extensions out of a sense of social responsibility and rational self-interest to avoid having to put a property back on the market in an uncertain environment.

The current guidance is to avoid gatherings of more than 10 people. Realtors® and their clients should observe best practices regarding social distancing in all aspects of the home buying and selling process. Even if banks and courthouses are open and settlement can occur, agents should communicate with the settlement agent and the lender regarding the possibility of remote closings and e-notarization.
 
Keeping a contract alive is generally the preferred option. However, the legal principle of force majeure may provide protection from default in situations where the ability of the seller and/or buyer to perform their duties under the contract is made impossible by forces beyond their control. In other words, a buyer or seller who is not able to settle due to COVID-19 related closures might not be held in default under the contract. This is a fall-back provision under the law, but it is preferable for the parties to work out issues between themselves to maintain good will and some control over the situation. As always, agents should consult with their Broker.
 
By keeping calm, observing best practices, communicating openly and honestly with clients and each other, and preparing for contingencies, Realtors® can protect their clients’ interest and uphold the highest standards under the Code of Ethics.
 
NVAR is open for business, so please direct any specific questions or concerns to the Legal Hotline.