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Real estate and disclosure of Covid-19 status

Covid-19

Picture: Cilna Steyn, director SSLR; Tony Clarke, chairman Rebosa; Berry Everitt, Chas Everitt International Property Group; Gerhard Kotze, managing director RealNet estate agency group.

South Africa now ranks among the five countries in the world with the highest Covid-19 infection rates (although in our case the mortality rate is much lower). This means the likelihood is high that occupants of a listed home or property for rent could test positive for the coronavirus. If that happens, what can – and should – an estate agent disclose to prospective buyers?

An estate agent in California was recently dismissed for failing to disclose to prospective buyers that the sellers of the home they visited for a viewing had tested positive for Covid-19. This set of a debate in the US real estate industry on what an estate agent can – and should –disclose to prospective buyers during the coronavirus pandemic.

No country has remained unaffected by the coronavirus pandemic and each has had a different approach to the viral scourge. In the US the guidelines issued by the National Association of Realtors (NAR) advises agents to obtain the seller client’s written consent to disclose to any agent that toured the property in the last 14 days that an occupant of the property has a confirmed case of Covid-19.

In South Africa the situation is very different as the regulations issued under the Disaster Management Act specifically provide that no person may refuse testing, and should a person then test positive for COVID-19, such a person must disclose this fact.

Guidelines on Covid-19 disclosure in South Africa

The reason for this is that South Africa decided to take the approach of track and trace, this means that when a person tests positive it is possible to track who he has been in contact with. Those people must then be informed that they have been in contact with a person that tested positive and they themselves must be isolated for a period of 14 days or get tested themselves.

“By definition, this will then mean that nobody, including an estate or rental agent may choose not to disclose the fact that a seller or an occupant of a property tested positive for COVID-19,” says Cilna Steyn, director SSLR.

Specific guidelines for real estate industry

The guidelines issued by both Rebosa and the Estate Agency Affairs Board (EAAB) clearly instruct estate and rental agents to take all reasonable precautions prior to and during a physical viewing of a property to avoid possible exposure to the virus for themselves as well as the prospective clients and the occupants.

“Our guidelines urge everyone involved in the industry to adhere to strict health and safety measures to preserve and save human lives. The guidelines are detailed and go into how viewings should be conducted and the various precautionary measures that should be taken,” says Mamodupi Mohlala, CEO EAAB.

“The regulations published under the Disaster Act are clear: any person that tests positive for the coronavirus must disclose this information so that persons that he/she have been in contact with may be traced and tested. So if a person (buyer, seller, agent) gets to find out that they tested positive for Covid-19, within 14 days of a viewing, the seller and buyer (landlord/tenant) have a duty to disclose such to the agent and the agent has an express duty to inform the other party -buyer or seller (landlord/tenant) and in the case that it is the agent that test positive, then both buyer and seller (landlord/tenant),” says Tony Clarke, chairperson of Rebosa.

Gerhard Kotze, managing director of the RealNet estate agency group, says they are carefully following all the Rebosa guidelines. Both owners and potential buyers are required to fill indeclarations regarding their current health and any recent exposure to anyone known to have COVID-19. “We trust owners to fill in these declarations truthfully as we would never knowingly take potential buyers to view a home where any of the occupants had tested positive for COVID-19, unless they were able to show that they had recovered and then been virus-free for at least 14 days,” he says. He adds that the property would also need to be fully sanitized in terms of the Disaster Management Act regulations before anyone could come to view the property. Any of their agents would be able to advise the property owners on how to do this.

According to Berry Everitt, CEO Chas Everitt International property group, they are also following the Rebosa guidelines when making arrangements for prospective buyers to view homes for sale. The only change they made was to create a digital version of the declarations. “This has enabled us to standardize the process and have quick access to contact information should we need to reach someone in a health emergency. For the peace of mind of clients, we are also keeping the information they fill in on these declarations on a separate, dedicated and highly-secured server,” adds Everitt.

Non-disclosure a criminal offence

Steyn says our courts take the matter of non-disclosure very seriously. “We have successfully prosecuted cases in matters pertaining to HIV; where a person who was aware of their HIV status infected another person and they were prosecuted with various crimes including attempted murder and culpable homicide, as well as various civil actions because of this failure to disclose their HIV status,” explains Steyn.

The same legal principle will most definitely apply in cases with regards to COVID-19. “This does in fact not mean that an estate agent who fails to disclose the potential positive COVID-19 case in a property will be prosecuted for attempted murder or culpable homicide. It does however, show that our law will take this extremely seriously and an agent who fails to disclose this and in doing so place another party at risk for contracting the virus will without a doubt not just face civil, but potential criminal proceedings,” she continues.

In terms of the current regulations, when an occupant of a listed home or rental property tests positive for Covid-19, that person must isolate and the property will not be available for physical viewing until 14 days after the infected person has tested negative for the virus. Thereafter the property must also be sanitized before anyone besides the occupants may be allowed inside.

However, should an agent become aware of a positive case within 14 daysAFTER the viewing he/she must inform the clients that they might have been exposed to a person who tested positive says Steyn. The possibility exists that the sellers/landlord may fear stigmatization of the property such as has been seen in properties where violent crimes took place. Her answer remains the same – the agent is obliged to make clients who were in the property aware that there is a risk that they might have been exposed, says Steyn.

Once there has been a time lapse of more than 14 days, then a home will be safe for physical viewings, of course with continued full adherence to the prescribed health and safety measures. Then there is no need to disclose a previous positive infection in the residence because it poses no risk in any way, shape or form to the potential tenant or purchaser, ends Steyn.

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