Governor Polis issued Executive Order D 2020 017 on March 27, 2020 (the “Stay-at-Home Order”), requiring the closure of all non-critical businesses and ordering all individuals to Stay at Home whenever possible. Under the Stay-at-Home Order, certain real estate brokerage activities were included within the definition of a “critical business.” Unfortunately, allowable activities were limited to those that relate to the essential aspects of an actual real estate appraisal and transaction and showings and open houses have not been deemed exempt activities.
On April 20, 2020, Governor Polis announced a transition away from the Stay-at-Home order to a new, more lenient, Safer-at-Home Order which loosens the restrictions on some non-critical businesses and social activities. Under the Safer-at-Home Order, real estate brokerage activities may recommence.
Following this announcement, Adams, Arapahoe, Boulder, Broomfield, Denver and Jefferson counties adopted and extended the Stay-at-Home order until May 8, 2020. Douglas, Eagle, El Paso, Larimer, and Summit Counties will move forward under versions of the Governor’s Safer-at-Home Order.
Adams, Arapahoe Boulder, Broomfield, and Jefferson Counties:
On April 24, 2020, Adams, Arapahoe Boulder, Broomfield and Jefferson Counties announced that the Stay-at-Home Order will be extended to May 8, 2020, in an effort to bend the curve and lessen the ongoing high level of COVID-19 virus infections in those counties. Each of these counties has modified the public health orders to allow non-critical businesses to begin curbside service while maintaining safe social distancing beginning on April 27, 2020. The counties have also modified the definition of “Necessary Travel” to include travel to pick up goods through curbside delivery, and the minimum number of on-site staffing is allowed for non-critical businesses. Members of the public may not enter the physical locations of non-critical businesses.
City and County of Denver:
The City and County of Denver has adopted and extended the Stay-at-Home Order through May 8, 2020, without any amendments. Therefore, until further notice, the full breadth of the Stay-at-Home Order will remain in effect until May 9, 2020.
Douglas, Eagle, El Paso, Larimer, and Summit Counties:
Douglas, Eagle, El Paso, Larimer, and Summit Counties will generally move forward under the Governor’s Safer-at-Home Order beginning on April 27, 2020. Real estate businesses may resume activities and private showings are generally allowed. Open houses will still be restricted for the time being. Along with real estate businesses, other non-critical businesses will also be able to re-open for curbside delivery on April 27, 2020. Retail stores can once again open their doors to in-person business beginning May 1, 2020, with proper social distancing guidelines in place. Starting May 4, 2020, all offices will be allowed to re-open at 50% workforce.
On April 23, 2020, Weld County announced “Safer-at-Work” guidelines to allow the safe reopening of businesses beginning April 27, 2020. According to the chair of the Weld County Board of County Commissioners, Mike Freeman, the guidelines allow “businesses, in general, to open across the board.” Weld County’s plan directly conflicts with the statewide Safer-at-Home Order described by Governor Polis, which only allows the loosening of restrictions. Weld County has not applied for a waiver, which is allowable under the Safer-at-Home Order. According to the Governor, counties that are out of compliance can lose state emergency preparedness grants and private businesses could lose their licenses to operate. Given the conflict between Weld County’s guidelines and the Governor’s Safer-at-Home Order, brokers should proceed cautiously by anticipating that the harsher statewide measures will apply.
Governor Polis has expressed his concerns that there could be a surge in new COVID-19 cases as we move away from the Stay-at-Home Order. When asked whether he would reissue the Stay-at-Home Order, Governor Polis stated that he plans to “adjust in real time,” making a renewed lockdown a real possibility. Given this possibility, brokers should be prepared to operate under the most severe restrictions. Many of the risks associated with carrying on a real estate practice under the COVID-19 restrictions can be reduced or eliminated through appropriate disclosures and agreements. However, brokers should proceed cautiously when considering broadly worded clauses and provisions that do not contemplate the broker’s or client’s specific situation. While some uniform measures are appropriate and advisable, we have seen many COVID-19 provisions circulating around the industry that do not properly address the broker’s or client’s needs. A poorly drafted or ill-suited legal provision could fail to provide the protection you intend and lead to unintended legal or disciplinary consequences.
Readers should be aware that each county has the authority to enact regulations imposing harsher restrictions than required under the statewide measures. Full descriptions of each county’s COVID-19 restrictions are available online and readers are encouraged to study the restrictions applicable to your area.
Zumbrennen Law has extensive experience assisting both brokers and brokerages in navigating the industry’s legal and regulatory framework. If you have any questions or would like our assistance, please contact us.