The Governmental Orders by Layer
The orders that reached this industry came in seven layers: the federal housing, public-health, labor and border instruments; the stay-at-home, closure, gathering, reopening, eviction and notarization orders of the fifty States and the District of Columbia; the health-officer, county-judge, recorder and court orders of the largest metropolitan areas; the instruments of the sector's own regulators, federal and State; the orders on the industry's counterparties, above all the courts and public offices through which its transactions become effective; the orders on its workforce and on the economy in which it sells; and the standing duties that bound every employer whether or not any order named it. Each layer is inventoried here with exhibit identifiers; the six-quarters section applies the layers quarter by quarter, and the tables on this page tabulate them.
The universe
Between March 1 and May 31, 2020, forty-two States and territories issued mandatory stay-at-home orders covering 2,355 of the nation's 3,233 counties.16 On July 2, 2021, thirty-five States had emergency declarations in force and nine had statewide face-covering requirements, the airborne-transmission controls that outlasted the capacity orders; on September 21, 2021, twenty-five States had emergency declarations and eleven had statewide face-covering requirements.17 The Library's index records the instruments The COVID Project has retrieved and graded, never a count of the orders that reached any employer, and each exhibit is cited for what it says. For this industry the Library's sector collection holds the federal and State instruments addressed to real estate, evictions, notarization or appraisal by name, and its State, metro, agency and ecosystem collections supply the general orders under which every showing, closing and leasing office operated.
The federal layer
The second quarter of 2020
The President's proclamation of March 13, 2020 declared the national emergency that every federal instrument below recites.18 Congress enacted the CARES Act on March 27, 2020, with a sixty-day foreclosure moratorium on federally backed mortgages and a 120-day bar, through July 24, 2020, on eviction filings and late fees at every "covered dwelling" financed with a federally backed mortgage or participating in a federal housing program.19 The Federal Housing Administration and the Federal Housing Finance Agency had already acted on March 18, 2020, suspending foreclosures and evictions on FHA-insured and Enterprise-backed mortgages for sixty days, and each agency extended its moratorium without interruption into 2021.20 The appraisal function was reached by three instruments in twenty-five days: Fannie Mae's Lender Letter LL-2020-04 of March 23, 2020, issued at FHFA's direction, authorizing exterior-only and desktop appraisals in place of interior inspections; FHA's Mortgagee Letter 2020-05 of March 27, 2020, doing the same for FHA-insured loans; and the interagency interim final rule of April 17, 2020, under which banks could defer the appraisal itself for 120 days after closing on transactions closed through December 31, 2020, with the NCUA's parallel rule and letter for credit unions.21 The Cybersecurity and Infrastructure Security Agency's Version 3.0 guidance of April 17, 2020 listed "residential and commercial real estate services, including settlement services" among essential critical-infrastructure workers; it is advisory and is relied on here only through the State orders that incorporated it.22 The workforce and customer base were reached by the Families First Coronavirus Response Act's paid-leave mandate from April 1, 2020, by the Department of Labor's temporary rule, by the entry proclamations of January 31, April 22 and June 22, 2020, and by the CDC's order of March 20, 2020 suspending the introduction of persons from Canada and Mexico.23
The third quarter of 2020
On September 4, 2020 the CDC ordered, under 42 U.S.C. § 264, that "a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any State or U.S. territory" through December 31, 2020, with violations punishable by fines of up to $100,000 and one year in jail for an individual and up to $200,000 for an organization, or by $250,000 and $500,000 where a death results.24 The FHA and FHFA moratoria were extended to December 31, 2020; the appraisal flexibilities were extended through the quarter; the FFCRA mandate and the revised leave rule ran to December 31, 2020; and the entry proclamations ran to March 31, 2021.25
The fourth quarter of 2020
Congress extended the CDC order to January 31, 2021 in the Consolidated Appropriations Act, 2021, and the President extended the entry proclamations on December 31, 2020; Fannie Mae's appraisal flexibilities were updated on December 10, 2020 and carried into 2021; the interagency deferral rule expired December 31, 2020.26
The first quarter of 2021
The CDC extended its eviction order to March 31, 2021 (86 Fed. Reg. 8020) and then to June 30, 2021 (86 Fed. Reg. 16731).27 The federal general layer began: Executive Order 13991 of January 20, 2021 and OMB Memorandum M-21-15 of January 24, 2021 required masks, distancing and a twenty-five percent occupancy limit in every federal building, the occupational-health and airborne-transmission controls of the federal workplace, including the field offices of HUD, the Social Security Administration and the Internal Revenue Service through which the industry's customers and closings pass; the CDC's conveyance order of January 29, 2021 (face coverings on every conveyance and at every transportation hub, an airborne-transmission control the carriers were required to enforce) and the TSA's security directives of January 31, 2021 governed every commute by transit, rail and air from February 1, 2021; Proclamation 10143 of January 25, 2021 suspended entry from the Schengen area, the United Kingdom, Ireland, Brazil and South Africa; and the CDC's inbound-testing order, signed January 25 and effective January 26, 2021, conditioned every international arrival.28 FHA's Mortgagee Letter 2021-06 of February 23, 2021 extended the exterior-only and desktop appraisal flexibilities to cases closed on or before June 30, 2021.29
The second quarter of 2021
The CDC's June 24, 2021 order extended the eviction halt through July 31, 2021 as "a final 30 day-period"; FHA's Mortgagee Letter 2021-15 of June 25, 2021 and FHFA's release of June 24, 2021 extended the foreclosure moratoria to July 31, 2021 and the eviction moratoria on FHA-insured and Enterprise-owned properties to September 30, 2021; the CFPB published on June 30, 2021 its Regulation X amendments, effective August 31, 2021, imposing procedural safeguards on the first foreclosure notice for every federally regulated servicer through December 31, 2021; the Fannie Mae and Freddie Mac appraisal flexibilities ended May 31, 2021 and FHA's on June 30, 2021; the TSA's second face-covering directive, enforcing the CDC's airborne-transmission control on every conveyance and at every transportation hub, ran from May 12 to September 13, 2021; Proclamation 10199 of April 30, 2021 added India; the land-border notices of June 23, 2021 ran to July 21, 2021; and OSHA's Healthcare Emergency Temporary Standard took effect June 21, 2021.30
The third quarter of 2021
The CDC order was in force July 1 through July 31, 2021 nationwide and, from August 3 through August 26, 2021, in every county with substantial or high transmission, until the Supreme Court vacated the stay of the judgment against it on August 26, 2021; the FHA eviction moratorium, the FHFA REO eviction moratorium, the VA's Circular 26-21-14 and USDA Rural Development's moratorium ran to September 30, 2021; the CFPB's Regulation X safeguards took effect August 31, 2021; the conveyance face-covering order and the TSA's directives ran every day of the quarter and were extended on August 20, 2021 to January 18, 2022; the Safer Federal Workforce Task Force reinstated face coverings in federal buildings and required onsite contractors to attest to vaccination or submit to testing from July 29, 2021, the occupational-health controls of the federal workplace; Executive Order 14042 of September 9, 2021 directed the vaccination clause into federal contracts, reaching every manager of federally leased property; the entry proclamations and land-border notices ran to November 8 and October 21, 2021; and the CDC's Title 42 order was reissued on August 2, 2021.31
The fifty States
The pattern
The States divided in March 2020 into three groups. In the first, in-person real estate work was prohibited or confined to legally necessary acts: Pennsylvania (March 19), New York (March 20 and, in terms, April 9), New Jersey (March 21), Michigan (March 24), Vermont (March 25), Delaware (March 24) and Washington (March 25), joined by the county health officers of the San Francisco Bay Area, Los Angeles County, Dallas County and Honolulu. In the second, the orders that copied Illinois' list named "real estate services (including appraisal and title services)" as essential and thereby placed the industry under the orders' conditions: six-foot distancing, telework "to the fullest extent possible," gathering caps of ten that made every open house unlawful, and customers who could leave home only for enumerated purposes; Illinois, Ohio, Indiana, Kentucky, Wisconsin, Tennessee, Alabama, North Carolina, Minnesota (transaction workers only), New Mexico (essential "limited to minimized operations and staff," under a prohibition of every gathering of five or more), Arizona, Texas (through CISA and the State list) and others fall here. In the third, the States without a stay-at-home order (Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah, Wyoming, Oklahoma's vulnerable-persons order) governed the industry through gathering caps of ten, closures of listed businesses, court eviction stays and, in Utah and Nebraska, eviction moratoria. Every group's recorders closed their counters; twenty-plus States suspended the notary's physical-presence rule by emergency instrument; thirty-four States and the District of Columbia stayed evictions by order, statute or court rule. The fifty-State table on this page states the row for every jurisdiction; this section states the analysis by region.32
The Northeast
New York ordered a fifty, then seventy-five, then one hundred percent reduction of the in-person workforce of every non-essential employer between March 18 and March 22, 2020; Empire State Development's guidance treated real estate as non-essential until April 9, 2020 and then directed that real estate services "shall be conducted remotely for all transactions," in person "only to the extent legally necessary"; the Chief Administrative Judge ordered on March 22, 2020 that "no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters"; Executive Order 202.7 of March 19, 2020 authorized notarization by audio-video technology and was continued to June 24, 2021; in-person showings resumed by region with Phase Two (May 29 to June 22, 2020) under the Real Estate Guidelines' appointment, occupancy and face-covering conditions, including the rule that in-person showings were "only allowed in unoccupied or vacant properties (e.g. current owner or lessee is not inside the property)," at no more than fifty percent occupancy, with remote walkthroughs to be conducted "rather than in-person walkthroughs," whose caps ran to May 19, 2021; and the eviction chain ran from Executive Order 202.8's ninety-day moratorium through the Tenant Safe Harbor Act (June 30, 2020), the COVID-19 Emergency Eviction and Foreclosure Prevention Act (December 28, 2020), chapter 104 of 2021 (May 4, 2021, to August 31, 2021) and chapter 417 of 2021 (September 2, 2021, to January 15, 2022).33
New Jersey's Executive Order 107 of March 21, 2020 closed non-essential retail, prohibited gatherings and ordered every business to "accommodate their workforce, wherever practicable, for telework" with on-site staff reduced "to the minimal number necessary" (¶¶ 10-11, in force until Executive Order 243 rescinded them on June 4, 2021), under which the Real Estate Commission confined showings to one-on-one appointments and barred open houses until June 2020; Executive Order 108 invalidated every conflicting local order; Executive Order 192 imposed mandatory health protocols on every worksite from November 5, 2020; Executive Order 106 of March 19, 2020 stayed every eviction and foreclosure removal for the public health emergency and two months after, and was modified on August 4, 2021 by Executive Order 249 and P.L. 2021, c. 188 to expire August 31, 2021 for households above eighty percent of area median income and December 31, 2021 for those below; P.L. 2020, c. 26 of April 14, 2020 authorized remote notarial acts for the duration of the emergency; and the general restrictions ended with Executive Order 242 (May 24, 2021, effective May 28) and the emergency-powers statute of June 4, 2021.34
Pennsylvania closed the physical operations of every non-life-sustaining business by the orders of March 19, 2020 (enforced from March 23), listing "Offices of Real Estate Agents and Brokers" and "Activities Related to Real Estate" among the businesses that could not continue physical operations, until the Governor's amendment of May 19, 2020 permitted the industry to operate statewide; the Supreme Court of Pennsylvania's judicial emergency stayed evictions from March 18 to May 11, 2020 and the Governor's order of May 7, 2020 stayed dispossession filings for sixty days, extended by the order of July 9, 2020 to August 31, 2020; Act 15 of 2020 (April 20, 2020) authorized remote notarization; the Real Estate Industry Guidance of May 19, 2020 permitted in-person operation statewide with three persons in a property and no group showings, releasing counties on entry to the Green phase between June 5 and July 3, 2020; the July 15, 2020 targeted-mitigation order, the November 23, 2020 telework order ("Unless impossible, all businesses must conduct their operations remotely") and its March 1 and April 4, 2021 amendments governed offices to May 31, 2021; and Act 21 of 2021 extended the Commonwealth's regulatory suspensions to September 30, 2021.35
Connecticut's Executive Order 7H ordered a one hundred percent reduction of the in-person non-essential workforce from March 23, 2020, under which showings ran by appointment and open houses were unlawful under the gathering cap of six that Executive Order 7N imposed from March 26, 2020 until Executive Order 7TT raised it on June 1, 2020; Executive Order 7Q of March 30, 2020 authorized remote notarization and was continued through February 15, 2022; Executive Order 7X of April 10, 2020 stayed notices to quit and summary process and was extended to June 30, 2021; Executive Order 12D of June 30, 2021 prescribed the notice, mediation and rental-assistance procedures for every summary-process action and was extended with the emergency to February 15, 2022; the DECD office rules capped offices at fifty percent from May 20, 2020 to May 20, 2021; and the Department of Public Health's universal-masking order of August 7, 2021, one of the airborne-transmission controls the State imposed on indoor settings, governed the Delta quarter.36
Massachusetts closed non-essential brick-and-mortar operations on March 24, 2020, enacted chapter 65 of 2020 (April 20, 2020) barring "non-essential eviction" filings, judgments and executions for residential and small-business units through October 17, 2020, and chapter 71 of 2020 (April 27, 2020) providing for virtual notarization, extended by chapter 20 of 2021 (June 16, 2021) to December 15, 2021; its offices reopened at twenty-five percent in Phase 1 (May 18, 2020), were cut to twenty-five percent again on December 26, 2020 and released only on May 29, 2021; and the Supreme Judicial Court's Seventh Updated Order governed the courts from July 12, 2021.37
Vermont suspended the in-person operations of every non-critical business on March 25, 2020 (Addendum 6), extended the suspension to May 15 and ordered that "On-line real estate sites shall post a prominent notice on their web platforms which advises potential sellers and purchasers that all in-person real estate transactions are temporarily suspended," while "[r]eal estate functions that can be conducted online, by phone or email may continue" (Addendum 9, April 10, 2020), permitted "[s]ervices operating with a single worker (such as appraisers, realtors, municipal clerks, attorneys, property managers, pet care operators and others)" to resume from April 20, 2020 "so long as no more than 2 persons," the provider and the person served, "are present at one time," while confining outdoor and construction work to "micro-crews" of no more than two persons (Addendum 10), enacted Act 101 (May 14, 2020) staying ejectment and foreclosure actions until thirty days after the emergency ended, which ran to July 15, 2021, and Act 95 (April 28, 2020) authorizing remote notarization; its telework mandate of November 14, 2020 ran to June 15, 2021.38
New Hampshire's Emergency Order 4 of March 17, 2020 provided that no landlord "may initiate eviction proceedings under RSA 540 during the State of Emergency ... and no eviction order shall be issued or enforced," through July 1, 2020, and Emergency Order 17 confined residents to their homes from March 27, 2020. Maine's Executive Orders 19 and 28 closed public-facing businesses and confined residents from March 25 and April 2, 2020, Executive Order 37 FY 19/20 of April 8, 2020 authorized remote notarization, Executive Order 40 FY 19/20 of April 16, 2020 regulated writs of possession and the initiation of eviction proceedings and was continued by Executive Order 5 FY 20/21 to the end of the emergency on June 30, 2021, and Executive Order 55 of May 29, 2020 ordered that "until further notice, all businesses and operations shall to the extent practicable continue to have their employees work remotely," a command in force from May 31, 2020 to June 30, 2021. Rhode Island's Executive Order 20-09 (March 23, 2020) closed recreation and close-contact businesses and ordered that "All business service personnel that can work from home are required to do so"; Executive Orders 20-13 and 20-14 (March 28, 2020) ordered every resident to stay home, prohibited gatherings of more than five persons, closed non-critical retail from March 30 and quarantined every non-work arrival for fourteen days, to May 8, 2020; Rhode Island on Pause (November 30 to December 20, 2020) again required that "employees who are able to work remotely are required to do so," and the Protecting Your Household order carried the winter rules from December 21, 2020 into February 2021; and the Rhode Island courts suspended eviction filings to June 1, 2020.39
Delaware closed the physical locations of all businesses not designated essential, real estate offices among them, from March 24 to June 1, 2020 and bound every business permitted to operate to a code under which "Teleworking must be maximized"; it stayed every residential eviction and foreclosure by the Sixth Modification of March 24, 2020, carried forward by the Omnibus Modification and the Twenty-Ninth Modification as revised June 15, 2021, until the State of Emergency terminated at 12:01 a.m. July 13, 2021; and its Supreme Court kept the courts in reduced phases, entering Phase 3 on June 1, 2021 under a judicial emergency that ended July 13, 2021, and restored universal masking in every court facility on August 16, 2021, with weekly testing of unvaccinated court employees from September 7, 2021, the judiciary's occupational-health and airborne-transmission controls for the Delta quarter.40
Maryland prohibited gatherings of more than ten persons from March 19, 2020 and kept that prohibition through at least June 30, 2020, closed businesses not designated essential on March 23, 2020 and confined residents from March 30; Executive Order 20-03-30-04 of March 30, 2020 authorized remote notarizations, and the Order of March 16, 2020, amended and restated April 3, 2020 as Executive Order 20-04-03-01, barred judgments for possession against tenants with substantial COVID-19 income loss, each for the state of emergency, which Order 21-06-15-01 terminated in two steps, eighteen orders on July 1, 2021 and fourteen, the eviction and notarization orders among them, with the emergency itself at 11:59 p.m. August 15, 2021; the Court of Appeals' administrative orders phased the courts through 2021 and restored the judiciary's occupational-health controls, universal face coverings and vaccination requirements for its personnel, in August 2021.41
The District of Columbia's Mayor's Order 2020-053 closed businesses not designated essential from March 25, 2020, its emergency legislation (D.C. Act 23-247 and its successors) barred evictions during the public health emergency and sixty days after, its Pause of December 23, 2020 re-closed offices, and Mayor's Order 2021-097 resumed the indoor face-covering requirement on July 31, 2021, an airborne-transmission control on every indoor public setting in the District.42
The Midwest
Illinois' Executive Order 2020-10 confined residents from March 21, 2020 and named "real estate services (including appraisal and title services)" as essential subject to its conditions; Executive Order 2020-14 of March 26, 2020 authorized remote notarization and was re-issued with every thirty-day disaster proclamation through 2021; Executive Order 2020-30 of April 23, 2020 barred the commencement of residential eviction actions and the enforcement of non-residential evictions and was extended by successive orders until filings resumed August 1, 2021 and the moratorium on enforcement expired October 3, 2021; the Tier 3 mitigation order of November 20, 2020 re-capped offices and gatherings; the Supreme Court of Illinois' order of April 6, 2021 required a certification with every residential eviction filing until the Governor's moratorium ended; and Executive Order 2021-20 restored universal indoor face coverings from August 30, 2021, an airborne-transmission control on every indoor workplace and public setting in the State.43
Ohio's Stay at Home Order of March 22, 2020 named real estate services in § 12(u) and confined residents through May 1, 2020; its prohibition of gatherings of more than ten persons ran from March 23, 2020 to April 5, 2021, its Retail and Business Compliance order of November 16, 2020 made every business the enforcer of the State's face-covering requirement, a workplace exposure-control duty carrying a twenty-four-hour closure sanction for any business that did not enforce it, its curfew confined residents from 10 p.m. to 5 a.m. from November 19, 2020 to February 11, 2021, and its mask, distancing and seated-service order ran to 12:01 a.m. June 2, 2021, while House Bill 197 tolled every limitations period to July 30, 2020 and the local eviction dockets were suspended under it. Indiana's Executive Order 20-08 named real estate services and title companies and appraisers from March 25, 2020, and Executive Order 20-06 of March 19, 2020 barred the initiation of eviction and foreclosure proceedings during the emergency, extended to August 14, 2020; Indiana's emergency ran through Executive Orders 21-17 and 21-22 to the end of the period.44
Michigan's Executive Order 2020-21 of March 23, 2020 prohibited in-person work outside critical infrastructure, among which real estate was not named, from March 24 through May 6, 2020; Executive Order 2020-19 of March 20, 2020 barred the removal of tenants from leased premises and was extended through July 15, 2020; Executive Order 2020-41 of April 8, 2020 suspended the notary's physical-presence rule; Executive Order 2020-70 § 10(h) permitted the industry to resume on May 7, 2020 "by appointment," with "no more than four people on the premises," "[n]o in-person open houses," and private showings only of owner-occupied, vacant, commercial and industrial property, repeated in Executive Order 2020-96 § 10(g) and released by Executive Order 2020-110 on June 1, 2020; the MDHHS orders of October 29, November 15 and December 18, 2020 and January 13, 2021 closed indoor dining and prohibited every indoor non-residential gathering from November 18, 2020 to January 31, 2021; and the Michigan Supreme Court's Administrative Order 2020-17 kept remote procedures in force to July 26, 2021.45
Wisconsin's Emergency Order 12 (issued March 24, 2020, effective March 25) named "real estate services (including appraisal, home inspection, and title services)" in § 13(u) and its Emergency Order 15 stayed evictions and foreclosures to May 26, 2020; after the Supreme Court of Wisconsin struck Emergency Order 28 on May 13, 2020, Milwaukee and Dane County re-imposed the regime locally within a day, Milwaukee's stay-at-home order having already barred landlords from entering leased premises except for emergencies.46
Minnesota's Executive Order 20-20 (signed March 25, effective 11:59 p.m. March 27, 2020) confined the exemption to "workers who facilitate and finance real estate transactions and real estate services, including appraisers and title services," and Executive Order 20-14 of March 23, 2020 suspended eviction filings and lease terminations "for the duration of the peacetime emergency," which ended July 1, 2021, when the Legislature's phase-out statute of June 29, 2021 took over through June 1, 2022; Executive Order 20-99 (November 20, 2020) re-closed indoor gatherings and venues for the winter, and Executive Order 21-11 carried the capacity limits to May 28, 2021.47
Missouri's Stay Home Missouri order confined residents from April 6 to May 3, 2020 and its metros' orders ran longer; Iowa closed listed businesses from March 17, 2020, stayed evictions by proclamation to May 27, 2020 and ordered remote work from November 11, 2020 to February 6, 2021; Kansas confined residents from March 30, 2020 and Executive Order 20-10 of March 23, 2020 provided that "[n]o landlords ... shall evict a residential tenant" for COVID-19 hardship, re-imposed by Executive Order 20-61 from August 17, 2020, reissued by Executive Order 21-13 on April 1, 2021, and in force until the state of disaster emergency expired June 15, 2021, while Executive Orders 20-20, 20-40 and 21-10 permitted remote notarization from April 9, 2020 to June 15, 2021; Nebraska's directed health measures capped gatherings at ten from March 19, 2020, Executive Order 20-07 of March 25, 2020 barred evictions for nonpayment through May 31, 2020 and Executive Order 20-13 of April 1, 2020 accelerated online notarization; North Dakota closed listed businesses from March 20, 2020 and its Supreme Court's Administrative Order 27 suspended eviction proceedings from March 2020 until its repeal effective April 1, 2021; South Dakota's Executive Order 2020-12 ran from April 6 to April 28, 2020, and its Supreme Court's judicial emergency ran to the end of the period.48
The South
Texas' Executive Order GA-14 (March 31, 2020) adopted CISA's list and the Division of Emergency Management's additions, which named "residential and commercial real estate services, including settlement services" on April 2, 2020; GA-18 ¶ 2(i) (April 27, 2020) limited local recording offices; the county judges of Dallas, Harris, Bexar and Travis Counties confined residents from March 23-24, 2020 and Dallas County barred open houses; the Supreme Court of Texas' Fourth Emergency Order of March 19, 2020 stayed residential eviction proceedings, extended by the Ninth and Twelfth Emergency Orders to May 18, 2020 for hearings and citations and May 25, 2020 for the execution of writs, and its Twenty-Seventh Emergency Order of September 17, 2020 imposed CDC-declaration procedures; the Governor's suspensions of April 8 and April 27, 2020 allowed appearance before a notary by videoconference; the Thirty-Eighth and Fortieth Emergency Orders governed the courts from May 26 through October 1, 2021; the disaster declaration was renewed monthly through the period; GA-38 of July 29, 2021 barred local mask mandates and SB 968 barred vaccination-proof requirements.49
Florida's Executive Order 20-91 confined residents from April 3, 2020 by reference to Miami-Dade's essential list; Executive Order 20-94 of April 2, 2020 suspended mortgage-foreclosure and eviction causes of action for forty-five days and was extended by successive orders through Executive Order 20-211 to 12:01 a.m. October 1, 2020; the Supreme Court of Florida's protocols order AOSC21-17 governed the courts from June 21, 2021 and was amended July 29, 2021.50
Georgia confined residents from April 3 to April 30, 2020, authorized remote attestation of recordable instruments by Executive Order 03.31.20.01 and remote notarization generally by Executive Order 04.09.20.01 until the Public Health State of Emergency ended July 1, 2021, and declared an Economic Recovery State of Emergency from July 1, 2021 under which Executive Orders 06.30.21.02 and 09.20.21.02 re-ordered the remote-notarization suspension and the other regulatory suspensions through the period.51
North Carolina's Executive Order 121 named real estate services from March 30, 2020, Mecklenburg County confined the industry to "appraisal and title services" until April 29, 2020, Executive Order 142 of May 30, 2020 imposed a twenty-one-day eviction moratorium after the Chief Justice's stay of eviction hearings, Session Law 2020-3 (May 4, 2020) authorized video notarization, extended by Session Laws 2020-74 and 2021-3 to March 1 and then December 31, 2021, Executive Order 181 imposed a modified stay-at-home order from December 11, 2020 to February 26, 2021, and Executive Order 224 of July 29, 2021 governed the Delta quarter.52
Virginia's Executive Order 53 closed non-essential retail from March 24, 2020 and Executive Order 55 confined residents to June 10, 2020; the Supreme Court of Virginia's judicial emergency of March 16, 2020 suspended unlawful-detainer proceedings to May 17, 2020, suspended eviction proceedings again from August 10 to September 7, 2020, and continued by numbered order through the Twenty-Eighth Order of September 20, 2021; the Department of Labor and Industry's emergency temporary standard of July 27, 2020 and permanent standard of January 27, 2021 governed every workplace.53
Tennessee's Executive Order 22 named real estate services from March 31, 2020 and its Supreme Court suspended eviction proceedings to June 1, 2020; Executive Order 82 of July 30, 2021 declared a limited emergency for the Delta quarter.54
Kentucky's Executive Order 2020-257 named the industry and commanded telework "to the fullest extent possible" from March 26, 2020, suspended evictions from March 26 to August 24, 2020, when Executive Order 2020-700 substituted a thirty-day notice and meet-and-confer requirement, and Senate Bill 150 (March 30, 2020) authorized notarial acts by video; Executive Order 2020-968 re-capped offices at thirty-three percent from November 20, 2020; the Supreme Court of Kentucky's Administrative Orders 2021-27 and 2021-28 of August 9, 2021 governed the courts and their eviction dockets through the period.55
Alabama's Stay at Home Order named real estate services on April 3, 2020 and its Sixth Supplemental Proclamation stayed evictions to June 1, 2020; Mississippi confined residents from April 3 to April 27, 2020, suspended evictions from April 3 to June 1, 2020, and Executive Order 1467 of April 6, 2020 authorized remote notarization for the emergency and fourteen days after; Louisiana confined residents from March 23, 2020, its courts suspended evictions to June 15, 2020, Proclamation 168 JBE 2020 re-tightened the winter, and Proclamation 137 JBE 2021 restored the statewide indoor face-covering requirement on August 4, 2021, an airborne-transmission control on every indoor setting, brokerage offices and leasing centers among them; Arkansas capped gatherings at ten from March 20, 2020 and its Executive Order 21-14 of July 29, 2021 governed the Delta quarter; South Carolina authorized the dispersal of any public gathering of three or more from March 23, 2020 (Executive Order 2020-13), closed listed businesses from April 1 and 6, confined every resident and visitor to home or work and capped every open retailer at twenty percent from April 7, 2020, and its Supreme Court, which had suspended evictions and foreclosures from March 18 to May 15, 2020, permitted video closings from May 1, 2020 and governed the trial courts by orders of June 15, July 30 and August 27, 2021; West Virginia confined residents from March 24, 2020, and Oklahoma's Supreme Court suspended eviction proceedings from March 16 to May 15, 2020.56
The West
California's Executive Order N-33-20 confined residents from March 19, 2020 and remained in force until June 15, 2021; the State Public Health Officer's essential-workers list named "residential and commercial real estate services, including settlement services," but the Bay Area health officers permitted real estate only virtually and in person "only when the unit is vacant" (March 31, 2020) and then by appointment (May 4, 2020), and Los Angeles County confined showings to appointment with no open houses through 2020; the eviction chain ran from Executive Order N-28-20 (March 16, 2020) and N-37-20 (March 27, 2020) through the Judicial Council's Emergency Rule 1 (April 6 to September 1, 2020), AB 3088 (August 31, 2020, to January 31, 2021), SB 91 (January 29, 2021, to June 30, 2021) and AB 832 (June 28, 2021, to September 30, 2021); the Blueprint for a Safer Economy (August 31, 2020, to June 15, 2021) and the Regional Stay at Home Order (December 5, 2020, to January 25, 2021) governed offices and leasing centers; the Cal/OSHA emergency standard governed every workplace from November 30, 2020; and the State Public Health Officer's orders of July 26 and August 5, 2021 and the county face-covering orders of July and August 2021, the airborne-transmission controls the counties imposed on every indoor public setting, governed the Delta quarter.57
Washington's Proclamation 20-25 confined residents from March 25, 2020 and its essential list did not name real estate; the Governor's real estate and mortgage memorandum of March 27, 2020 barred open houses and limited showings to two persons by appointment, and the Real Estate COVID-19 Requirements carried appointment, party-cap and face-covering conditions, the exposure-control requirements of every showing, through Phase 3 to June 30, 2021; Proclamation 20-19 of March 18, 2020 prohibited residential evictions and was extended through 20-19.6 to June 30, 2021, then bridged by Proclamation 21-09 (July 1 to September 30, 2021) and 21-09.1 (to October 31, 2021); Proclamation 20-25.8 re-capped offices at twenty-five percent and barred open houses from November 17, 2020; and the Secretary of Health's Order 20-03.4 and Proclamation 20-25.15 restored indoor face coverings for all persons from August 23, 2021 and forbade every business to admit an unmasked person, the airborne-transmission controls of the Delta quarter.58
Oregon's Executive Order 20-12 prohibited office work where telework was available from March 23, 2020; Executive Order 20-11 of March 22, 2020 imposed a moratorium on residential evictions for nonpayment, and Executive Order 20-13 of April 1, 2020 extended it to a "temporary moratorium on terminations of residential and non-residential rental agreements and evictions on the basis of nonpayment," continued by HB 4213 (June 30, 2020), HB 4401 (December 23, 2020, to June 30, 2021) and SB 278 (June 24, 2021, sixty-day safe harbor); Executive Order 20-66 imposed the county framework from December 3, 2020 to June 30, 2021; and the Oregon Health Authority's indoor face-covering rule and Oregon OSHA's companion workplace rule of the same day, the State's occupational-health and airborne-transmission controls for the Delta quarter, governed indoor spaces from August 13, 2021.59
Nevada closed businesses not designated essential from March 20, 2020 and confined residents from April 1, 2020; Directive 013 of April 8, 2020 closed showrooms and barred open houses; Directive 008 of March 29, 2020 imposed a residential and commercial eviction moratorium, phased out and re-imposed from December 14, 2020 to May 31, 2021 and followed by AB 486's mediation stays; the Statewide Pause of November 24, 2020 re-capped offices; and Directive 047 imposed universal indoor face coverings, an airborne-transmission control that Nevada OSHA enforced in every workplace, in twelve counties from July 30, 2021 and in sixteen of seventeen by August 24, Clark and Washoe throughout.60
Arizona confined residents from 5:00 p.m. March 31 to May 15, 2020, its Executive Order 2020-14 of March 24, 2020 directed law enforcement to "temporarily delay enforcement of eviction action orders for residential premises," extended by Executive Order 2020-49 to October 31, 2020, the Maricopa County Recorder closed its counters from March 31, 2020, and Executive Order 2021-06 governed business conditions until Executive Order 2021-16 let it expire September 29, 2021.61
New Mexico's Public Health Emergency Order of March 23, 2020 (effective March 24) named "Real estate services including brokers, title companies, and related services" among the businesses it designated essential (¶ 3(q)) while ordering every business so designated to "minimize their operations and staff to the greatest extent possible," every other business to reduce its in-person workforce by 100 percent, and every gathering of five or more persons prohibited, so that no open house could lawfully occur; those conditions governed to May 15, 2020; its Supreme Court's Order No. 20-8500-007 of March 24, 2020 stayed writs of restitution where the tenant showed inability to pay and remained in force until phased out from January 4, 2022, its orders of November 13 and 18, 2020 re-closed the State for the winter, and its Public Health Emergency Order of August 17, 2021 restored the indoor face-covering requirement from August 20, 2021, an airborne-transmission control on every indoor public setting.62
Colorado ordered every employer to reduce in-person work by at least fifty percent from March 24, 2020, confined residents statewide from 6:00 a.m. March 26 to April 26, 2020 and in Denver from March 24 to May 8, 2020, limited evictions by Executive Order D 2020 012 of March 20, 2020 and the chain of tenant-protection orders that ran from it to July 8, 2021, cut offices to ten percent and prohibited personal gatherings in Level Red of its COVID-19 Dial from November 20, 2020, and by Public Health Order 20-38 ended the Dial on April 16, 2021 while keeping employer face-covering and implementation duties, the workplace infection-prevention requirements of the Public Health Order, in force through the third quarter of 2021 under the Fourth, Fifth and Sixth Amended orders.63
Utah's Executive Order 2020-11 (April 1, 2020), rescinded and superseded by Executive Order 2020-13 (April 2, 2020), suspended residential evictions of persons experiencing COVID-19 hardship through May 15, 2020, and its courts reinstated the courthouse face-covering mandate on July 30, 2021, the judiciary's airborne-transmission control.64
Hawaii's Third Supplementary Proclamation confined residents from March 25, 2020 and did not enumerate real estate among the businesses it designated essential; its Second Supplementary Proclamation imposed the fourteen-day traveler quarantine from March 26, 2020 that continued in every successor proclamation into 2021; its supplementary proclamations suspended evictions for nonpayment from April 16, 2020 to August 6, 2021 and suspended the notary's physical-presence rule; its Emergency Proclamation of August 5, 2021 and Executive Order 21-05 of August 10, 2021 governed the Delta quarter; and Honolulu treated real estate as essential by appointment with no open houses.65
Alaska's Health Mandate 011 confined residents from March 28, 2020 and SB 241 barred COVID-19 evictions through June 30, 2020; Idaho's Order to Self-Isolate ran from March 25 to April 30, 2020; Montana's Stay at Home Directive ran from March 28 to April 26, 2020 with an eviction bar to May 24, 2020; Wyoming's Statewide Public Health Order #1 capped gatherings at ten from March 19, 2020 and its judicial emergency ran through the period.66
The winter re-tightening
Between November 2020 and January 2021, eighteen jurisdictions re-closed or re-capped the indoor settings in which this industry operates: California's Regional Stay at Home Order closed offices and confined residents from December 5, 2020 to January 25, 2021; Washington's Proclamation 20-25.8 re-capped offices at twenty-five percent and stated that "open houses" were "prohibited" from November 17, 2020; Pennsylvania's order of November 23, 2020 required remote operation "[u]nless impossible"; Illinois' Tier 3 order, Minnesota's Executive Order 20-99, Michigan's MDHHS orders of November 15 and December 18, 2020 and January 13, 2021, New Mexico's orders of November 13 and 18, 2020, Colorado's Dial, Massachusetts' Order 59, Kentucky's Executive Order 2020-968, Nevada's Pause, Oregon's Executive Order 20-66, Rhode Island's Pause, the District's Pause, North Carolina's Executive Order 181, Ohio's Retail and Business Compliance order of November 16 and 10 p.m. curfew of November 19, 2020, Iowa's proclamation of November 10, 2020 and Louisiana's Proclamation 168 JBE 2020 re-capped gatherings, offices and retail; and the metros of St. Louis County, Shelby County, Denver, Philadelphia, Los Angeles County, Cook County, Milwaukee and Dane County re-imposed their own closures.67 Each re-capped or closed the leasing office, the brokerage office and the room in which a showing occurs, and each barred or capped the gathering that an open house is.
The 2021 transition and the preemption States
The general restrictions ended on stepped dates: Texas March 10, 2021; Wyoming March 16; Arizona March 25; Wisconsin March 31; Georgia April 8 (with sector duties to July 1); Utah April 10 and May 4; Colorado April 16; Indiana April 6 (directives to June 30); Massachusetts May 29; New Jersey June 4; Pennsylvania May 31; New York May 19 (caps) and June 25; Illinois June 11; Kentucky June 11; California, Michigan, Minnesota, Oregon, Washington, Maryland and Vermont June 15 through July 1; New Mexico July 1.68 The eviction, notarization and court instruments did not end with them: New York's, New Jersey's, California's, Illinois', Washington's, Oregon's, Minnesota's, New Mexico's, Maryland's, Hawaii's, Vermont's, Nevada's, Connecticut's, Delaware's, Colorado's and the District's moratoria and eviction procedures and the FHA and FHFA moratoria ran into or through the third quarter of 2021, as the six-quarters section shows. Texas (GA-38, July 29, 2021), Florida (SB 2006, July 1, 2021), Arizona and Georgia barred local face-covering and closure orders in 2021; in those States the third quarter of 2021 is carried by the federal layer, the State emergencies and their renewals, the courts' orders and the eviction procedures of the justice courts, each set out in the six-quarters section.69
The largest metros
The pattern
The local instruments that reached this industry were of five kinds: county health-officer orders that defined permitted real estate activity more narrowly than the State; recorder and clerk closures; court orders staying evictions, cancelling foreclosure sales and closing clerks' offices to filing; local eviction moratoria that State law authorized or preserved; and the Delta-wave workplace infection-prevention and exposure-control orders of July through September 2021 (universal indoor face coverings, vaccination-proof conditions of entry and business duties of enforcement) that governed every indoor showing, closing and leasing office. The metro pages of this site tabulate them; the instruments that matter most are these.70
New York, Philadelphia, Pittsburgh, Boston and the Washington and Baltimore metros
New York City's Emergency Executive Orders 102 and 103 imposed the one hundred percent in-person workforce reduction from March 22 and March 25, 2020, and in-person showings resumed there only with Phase 2 on June 22, 2020; the Key to NYC order of August 16, 2021 required proof of vaccination for indoor entertainment, recreation, dining and fitness from August 17, 2021.71 Philadelphia's Emergency Order No. 2 of March 22, 2020 closed businesses not designated essential and confined residents; real estate businesses were permitted to operate only from May 26, 2020 under the Commonwealth's guidance; the Montgomery County Recorder of Deeds closed to the public on March 19, 2020 and accepted recordings by mail only; the First Judicial District barred foreclosure and landlord-tenant filings to July 10 and July 26, 2020, implemented the CDC order from September 17, 2020, stayed every sheriff's mortgage-foreclosure and tax sale until September 2021, extended the Municipal Court eviction moratorium through June 30, 2021 and kept the residential eviction moratorium through October 3, 2021 on its own finding of substantial or high transmission; the Fall/Winter Order of November 20, 2020 required that "[a]ll business operations must be conducted remotely" unless impossible; and the Full Reopening Order of June 15, 2021 bound every business through the third quarter of 2021, with the indoor face-covering requirement its amendment of August 11 imposed from August 12, 2021 as an exposure-control condition on every business.72 Pittsburgh's Court of Common Pleas stayed writs of possession from March 16, 2020 for the judicial emergency, barred new landlord-tenant filings from August 7 to 31, 2020, continued sheriff sales to September 7, 2021 and adopted temporary eviction procedures from August 6 to October 31, 2021, while the City's chapter 782 ordinances regulated eviction from March 3, 2021 for the local emergency.73 Boston's Public Health Commission ordered an eviction moratorium on August 31, 2021 and face coverings in indoor public places from August 27, 2021, the City's airborne-transmission control, and Somerville's Board of Health barred eviction enforcement from June 17, 2021 through April 30, 2022.74 In the Washington suburbs, Fairfax County closed its Clerk and permit offices to walk-in business from March 27, 2020, Montgomery County kept its stay-at-home order to June 19, 2020 and its Board of Health restored the indoor face-covering requirement from August 7, 2021, and the Fairfax and Alexandria Circuit Courts kept face-covering orders in force in their courthouses from August 2 and 4, 2021; Baltimore City's Health Commissioner restored indoor face coverings from August 9, 2021 as announced, by written order of August 10, 2021, in every indoor location including "shared areas of commercial offices," an airborne-transmission control reaching every brokerage and management office in the City.75 Each face-covering order named in this paragraph was an airborne-transmission control on the indoor settings it governed: for the city and county orders, on every indoor public setting and workplace within their territory, brokerage offices, leasing centers and closing rooms among them, and, in the courts named, on every eviction and title docket the industry's transactions pass through.
Chicago, Detroit, Cleveland, Columbus, Cincinnati, Indianapolis, Milwaukee, Minneapolis, St. Louis, Kansas City and Louisville
Chicago's Public Health Order 2020-1 of March 18, 2020 remained in force through the period; the Cook County Clerk closed to the public in March 2020; the Circuit Court of Cook County rescheduled every matter from March 17, 2020, resumed by videoconference from July 6, 2020, re-tightened on November 23, 2020 and governed residential eviction proceedings from June 25, 2021 under General Administrative Order 2021-02 until the Governor's moratorium ended October 3, 2021; and Chicago's Public Health Order 2021-1 and Cook County's Order 2021-10 restored indoor face coverings for all persons from August 20 and 23, 2021, the airborne-transmission controls of the Delta quarter.76 Detroit's 36th District Court imposed an eviction moratorium from March 13, 2020, extended through the spring, and the Detroit Health Department's orders ran through 2021; Cleveland's courts declared a judicial emergency on March 16, 2020, the County Executive suspended foreclosure actions from March 19, 2020, the City Council directed the Housing Division to halt evictions from March 23, 2020, and the Housing Court administered the CDC stays case by case after August 27, 2021; Columbus' Municipal Court adopted eviction orders under the CDC extension on June 24 and August 5, 2021 and the Mayor restored the indoor face-covering requirement on September 10, 2021; Hamilton County's courts limited courthouse access from April 6, 2020; Marion County's Public Health Orders confined residents from March 24, 2020.77 Milwaukee's stay-at-home order of March 25, 2020 barred landlords from entering leased premises except for emergencies, Milwaukee's Order 4.2 capped every indoor setting at the lesser of twenty-five percent or ten persons from October 29, 2020 to March 18, 2021, and Dane County's Face Covering Emergency Orders governed every enclosed public space from August 19, 2021; Minneapolis' emergency regulations ran from March 17, 2020 to September 30, 2021.78 St. Louis County's Safer At Home Order of November 17, 2020 confined residents for a second time and capped businesses at twenty-five percent into 2021, and the City's and County's face-covering orders of July 26, 2021, airborne-transmission controls on every indoor public place, governed every business open to the public; Kansas City's Ordinance 210694 required face coverings indoors from August 19, 2021; the Fayette County Clerk in Lexington closed to the public on March 17, 2020, suspended transfers and notary oaths, stated that mailed recordings would "not be processed until we return," and did not resume in-person transactions until April 12, 2021, while the Jefferson County Clerk in Louisville closed from mid-March to July 2020 and Louisville required face coverings in every Metro building from August 2, 2021.79 Each face-covering order named in this paragraph was an airborne-transmission control on the indoor settings it governed: for the Chicago, Cook County, Dane County, St. Louis, Kansas City and Columbus orders, on every indoor public setting and workplace within their territory, brokerage offices, leasing centers and closing rooms among them, and, for Louisville's, on every Metro Government building.
Los Angeles, the Bay Area, San Diego, Sacramento, Riverside, Seattle, Denver, Salt Lake City, Las Vegas, Phoenix and Honolulu
Los Angeles County's Safer at Home orders confined residents from March 21, 2020 and its reopening orders from May 26, 2020 confined showings to appointment with no open houses; the County's tenant-protections resolution and the City's Ordinance 186585 barred residential evictions from March 4, 2020 through September 30, 2021 and beyond; the Blueprint orders and the Temporary Targeted Safer at Home order of December 30, 2020 re-closed the winter; and the Health Officer's order of July 16, 2021 required face coverings of every person in every indoor public setting regardless of vaccination status from July 17, 2021, the airborne-transmission control under which every showing, closing and leasing office in the County operated for the rest of the quarter.80 San Francisco's Health Officer ordered shelter in place from March 17, 2020, permitted real estate only virtually and in vacant units from March 31, 2020, continued the shelter order through May 2020, required face coverings from April 17, 2020, and with the seven other Bay Area jurisdictions restored universal indoor face coverings from August 3, 2021 and required proof of vaccination in covered businesses from August 20, 2021, the region's airborne-transmission and access controls; the San Diego County Assessor/Recorder/County Clerk closed all offices to over-the-counter service from March 23, 2020, and San Diego County's Health Officer orders confined residents from March 29, 2020, re-closed the region from December 6, 2020 to January 25, 2021, and kept the isolation and quarantine orders in force through the third quarter of 2021; Sacramento County confined residents from March 19, 2020 and restored the indoor face-covering requirement from July 30, 2021; Riverside County closed its schools and gatherings from March 16, 2020.81 Seattle's civil emergency orders barred residential evictions from March 14, 2020 and small-business evictions from March 17, 2020, extended without interruption to September 30, 2021 and then to January 15, 2022, and King County's Health Officer ordered indoor face coverings from September 7, 2021; Denver's Stay at Home order ran from March 24 to May 8, 2020, the Twentieth Judicial District imposed CDC-moratorium procedures on every eviction filing from September 11, 2020, Jefferson County closed its county buildings to May 31, 2020, and Denver's Level Red order cut offices to ten percent from November 20, 2020; Salt Lake County's Order 2020-03 barred landlords from entering leased premises and confined residents from March 30 to May 1, 2020, and Salt Lake City deferred landlord fees and barred City assistance with evictions from April 10, 2020 to May 4, 2021; Clark County's Code 3.04.065 made every directive of the Governor punishable by loss of a business license and a $1,000 daily penalty from April 21, 2020, North Las Vegas' Ordinance 3024 enforced the eviction directives, the Eighth Judicial District Court closed its Clerk's Offices to in-person filing from June 1, 2020 to March 15, 2021 and restored universal face coverings in its facilities on July 19, 2021, and Clark County required every employee in indoor public spaces to wear a face covering from July 22, 2021, an occupational-health control enforced against the employer's business license; the Maricopa County Recorder closed its counters from March 31, 2020 and the Superior Court in Maricopa County required face coverings in court facilities from August 9, 2021; Honolulu's Emergency Order 2020-02 confined residents from March 23, 2020, its Emergency Order 2020-14 permitted real estate by appointment with no open houses from May 28, 2020, and its Safe Access Oahu order of September 13, 2021 and Emergency Order 2021-13 required real estate to be conducted "by remote/electronic means whenever possible."82 Each face-covering order named in this paragraph was an airborne-transmission control on the indoor settings it governed: for the Los Angeles County, Bay Area, Sacramento County, King County and Clark County orders, on every indoor public setting and workplace within their territory, brokerage offices, leasing centers and closing rooms among them, and, in the courts named, on every eviction and title docket the industry's transactions pass through.
Dallas, Houston, San Antonio, Austin, Atlanta, Charlotte, Nashville, Memphis, New Orleans, Orlando and Tampa
Dallas County's Stay Home Stay Safe order of March 22, 2020 (effective 11:59 p.m. March 23) and its Safer At Home amendment of April 2, 2020 barred open houses; the Dallas County Clerk closed its offices from March 24, 2020 "until the Stay Home Stay safe Order has been lifted" and the Tarrant County Clerk barred public access from March 23, 2020; the City of Dallas' Ordinance 31521 of April 22, 2020 required a COVID notice before any eviction for the duration of the Governor's declaration; and Dallas County's face-covering order of August 11, 2021, the County's airborne-transmission control, governed the Delta quarter.83 Harris County's Stay Home, Work Safe order confined residents from March 24, 2020, and the County Judge cancelled or controlled the occupancy of every monthly foreclosure sale from May 5, 2020 through May 4, 2021; the Harris County courts' operating plans governed every docket through 2021.84 Bexar County's orders of March 18, 2020 asked landlords and lenders to suspend evictions and foreclosures, the County Judge postponed the July 7 and August 4, 2020 foreclosure sales, Amended Executive Order NW-14 adopted the CDC eviction order as a local mandate from September 4, 2020, NW-19 carried it to March 9, 2021, and the City of San Antonio's Fourteenth Addendum to the Eighth Declaration of Public Health Emergency of August 11, 2021 carried the eviction clause into the Delta quarter, while Executive Order NW-21 (August 10, effective August 11, 2021) required face coverings in every County facility and adopted the Local Health Authority's school directive; the Justices of the Peace governed eviction filings by their Fourth Order (April 7 to June 30, 2021) and Fifth Order (August 5 to October 3, 2021), and NW-19 capped occupancy at fifty percent from December 28, 2020 to March 10, 2021.85 Atlanta's Executive Order 2020-21 confined residents from March 24, 2020, its Executive Order 2020-10 imposed a sixty-day eviction moratorium on City-affiliated housing from March 16, 2020, the Fulton County Clerk limited recording from March 21, 2020, and the Mayor's order of July 28, 2021 required face coverings in public places; Mecklenburg County's Stay at Home Order of March 26, 2020 limited real estate to "appraisal and title services" until April 29, 2020, Wake County's proclamation permitted "realtors, appraisers, notary services, title insurers, inspectors," the Mecklenburg Register of Deeds limited access from March 2020, and Charlotte, Mecklenburg, Raleigh, Wake, Durham and Orange restored indoor face-covering requirements between August 9 and 31, 2021.86 Shelby County's Health Directive No. 16 closed every business's physical location to the public from December 26, 2020 to January 22, 2021 and its Health Orders 25 and 26 required indoor face coverings in August and September 2021; Nashville's Orders ran to May 14, 2021; New Orleans' Civil District Court and City Courts suspended eviction hearings from March 13, 2020, and the City's guidelines required indoor face coverings from July 31, 2021 and proof of vaccination or a negative test in indoor venues from August 16, 2021; Orange County's Chief Judge stayed mortgage foreclosures and sales from April 2, 2020; Hillsborough County's orders confined residents from March 27, 2020.87 Each face-covering order named in this paragraph was an airborne-transmission control on the indoor settings it governed: for the Dallas County, Atlanta, Charlotte, Mecklenburg, Raleigh, Wake, Durham, Orange, Shelby County and New Orleans orders, on every indoor public setting and workplace within their territory, brokerage offices, leasing centers and closing rooms among them, and, for Bexar County's Executive Order NW-21, on every County facility.
The sector regulators
The federal housing regulators
The industry's revenue functions were conditioned by five federal regulators in their own instruments. HUD's Federal Housing Administration barred foreclosures and evictions on FHA-insured single-family mortgages from March 18, 2020 through September 30, 2021 (Mortgagee Letters 2020-04 through 2021-15) and prescribed exterior-only and desktop appraisals for FHA cases from March 27, 2020 through June 30, 2021 (Mortgagee Letters 2020-05 and 2021-06).88 The Federal Housing Finance Agency directed Fannie Mae and Freddie Mac to suspend foreclosures and REO evictions from March 18, 2020, extended the REO eviction moratorium to September 30, 2021, and directed the appraisal flexibilities of Lender Letter LL-2020-04 from March 23, 2020 to May 31, 2021; the Agency's directions were announced in its releases, which are cited as the record of the directions, and were implemented by the Enterprises' Lender Letters and Bulletins, which bound every seller-servicer by contract.89 The OCC, the Federal Reserve Board, the FDIC and the NCUA deferred the appraisal requirement itself for 120 days after closing on transactions closed through December 31, 2020, and explained the rules in an interagency statement of April 14, 2020 on appraisals and evaluations during the emergency, which, with the NCUA's Letter to Credit Unions 20-CU-10, is cited as the regulators' guidance implementing the rules and not as an order.90 The CFPB's Regulation X amendments, signed June 25 and published June 30, 2021 (86 Fed. Reg. 34848) and effective August 31, barred every federally regulated servicer from making the first notice or filing for foreclosure on most loans until the borrower had been evaluated, from August 31 through December 31, 2021.91 The CDC, as regulator of every landlord in the country, is the sixth.92
The State real estate commissions and licensing bodies
The State commissions issued the guidance under which the Governors' gathering and stay-at-home orders were applied to showings and open houses (New Jersey's Real Estate Commission under Executive Order 107; Nevada's Real Estate Division on March 24, 2020; North Carolina's, Illinois', Kentucky's, Massachusetts', Ohio's and Tennessee's commissions and associations under their States' orders), suspended or converted licensing examinations and continuing education, and extended license terms; where the commission's instrument is not a separate exhibit of the Library, the order relied on is the Governor's or health officer's order under which it issued, which is the order limiting commerce.93
The notarial instruments
Twenty-plus States suspended the physical-presence rule for notarial acts by emergency instrument between March 19 and May 4, 2020, and several kept the suspension in force through the third quarter of 2021: Illinois (re-issued with each disaster proclamation), Massachusetts (chapter 20 of 2021, to December 15, 2021), North Carolina (Session Law 2021-3, to December 31, 2021), Connecticut (Executive Order 7Q's successors, to February 15, 2022), Maryland (to August 15, 2021), Texas (the Governor's suspensions of statutory notary-presence requirements, announced April 8, 2020 for wills, powers of attorney, directives to physicians and oaths and April 27, 2020 for real estate instruments, each "until terminated by the Office of the Governor"), Mississippi (Executive Order 1467, for the emergency and fourteen days), Georgia (Executive Orders 03.31.20.01 and 04.09.20.01 to July 1, 2021, re-ordered by Executive Orders 06.30.21.02 and 09.20.21.02 under the Economic Recovery emergency), New Jersey (P.L. 2020, c. 26, superseded July 22, 2021 by permanent law) and Vermont (Act 95, to thirty days after the emergency); the earlier instruments of Tennessee (Executive Order 26, April 9, 2020, continued to April 28, 2021), Maine (Executive Order 37 FY 19/20, April 8, 2020), Missouri (Executive Order 20-08, April 6 to August 28, 2020), Kansas (Executive Orders 20-20, 20-40 and 21-10, April 9, 2020 to June 15, 2021) and South Carolina (the Supreme Court's orders of April 30 and May 1, 2020 permitting video closings) governed the quarters in which they ran.94 Each is an order of an appropriate authority that changed how every closing in the State occurred, because the in-person act was limited by order.
The counterparties
The courts
The industry's eviction remedy runs through a courtroom, and the courts closed it. The Supreme Courts of Texas, South Carolina, New Mexico, Virginia, Tennessee, Oklahoma, Pennsylvania and Georgia and the Chief Justices of North Carolina, Louisiana, Maine, Mississippi, North Dakota and Rhode Island suspended eviction proceedings between March 13 and March 27, 2020, for periods running from May 11 to June 15, 2020 and, in Maine, to August 3, 2020; North Dakota's Administrative Order 27 ran to April 1, 2021 and New Mexico's stay to 2022; the Judicial Council of California's Emergency Rules 1 and 2 barred the issuance of summons in unlawful-detainer actions from April 6 to September 1, 2020; the New York courts accepted no non-essential filings from March 22, 2020; the courts of Cook County, Philadelphia, Pittsburgh, Cleveland, Columbus, Detroit, New Orleans, Orlando, Kansas City, Denver, Las Vegas and Bexar County stayed evictions, cancelled sheriff's sales or closed their clerks' offices to filing on their own orders; and in the third quarter of 2021 the Supreme Court of Texas' Fortieth Emergency Order, the Supreme Court of Virginia's Twenty-Sixth through Twenty-Eighth Orders, the Supreme Court of South Carolina's orders of June 15, July 30 and August 27, the Court of Appeals of Maryland's orders of August 6 and 20, the Supreme Court of Kentucky's orders of August 9, the Supreme Court of Florida's amended protocols of July 29, the Michigan Supreme Court's Administrative Order 2020-17 to July 26, the Supreme Court of Delaware's masking-and-testing order of August 11, the Supreme Judicial Court of Massachusetts' order of July 12, the Cook County General Administrative Orders 2020-07 and 2021-02, the Philadelphia Trial Division's Order 27 of 2021, the Bexar County Justices of the Peace's Fifth Order, the Franklin County Municipal Court's orders and the District of Arizona's General Order 21-15 governed the dockets on which every landlord depended.95
The recorders and clerks
The Maricopa County Recorder, the San Diego County Assessor/Recorder/County Clerk, the Tarrant County Clerk, the Montgomery County (Pennsylvania) Recorder of Deeds, the Fayette County Clerk and the Jefferson County Clerk closed their counters to the public by their own notices between March 16 and March 31, 2020, most "until further notice"; the Cook County Clerk, the Fulton County Clerk, the Dallas County Clerk and the Mecklenburg County Register of Deeds announced the closure or restriction of their counters in the same weeks under the stay-at-home, closure and emergency orders of Illinois and Chicago, Fulton County, Atlanta and Georgia, Dallas County and Mecklenburg County, and those announcements are cited as the record of closures the orders produced, with the orders themselves the instruments relied on; Michigan's registers of deeds were among the workers permitted to resume in-person work only on May 7, 2020; Texas' GA-18 ¶ 2(i) limited local recording offices; and the Fayette County Clerk did not resume in-person transactions until April 12, 2021.96 Every conveyance in those counties passed through an office an order had closed or emptied.
The tenants' industries
The commercial landlord's counterparties were the restaurants, retailers, salons, gyms, theaters, hotels and offices whose operations every State closed or capped; the orders on those industries are inventoried in the companion analyses and relied on here, by Q&A-12's own logic and the statute's text, as orders limiting the commerce of the landlord that leased to them.97
Schools, child care, quarantine and transit
The school closures of March 2020 and the remote and hybrid school year of 2020-21, the emergency-only child-care orders, the FFCRA leave mandate to December 31, 2020, the health officers' isolation and quarantine orders in every State and county, and the CDC conveyance order and TSA directives from February 1, 2021 reached the industry's staff and their customers directly; the school face-covering and quarantine orders of August and September 2021, the airborne-transmission and exposure controls of the 2021-22 school year that governed the households of the industry's staff, are the instruments of the Delta quarter.98
The ecosystem
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation, each an order in its own right: supply chain and borders (the land-border notices, the entry proclamations, the Title 42 order, which closed the cross-border movement of buyers, investors and the industry's own staff); workforce, schools and child care (the FFCRA mandate, the school closures, the quarantine orders); travel and gatherings (the interstate traveler quarantines of New York, Connecticut, New Jersey, Hawaii, Massachusetts, Vermont, Maine, Rhode Island, New Mexico, Kentucky, Kansas and Chicago, which confined out-of-State buyers and second-home purchasers; the gathering limits of every State); courts and public offices; transit; and health care as counterparty (the health-care-worker vaccination orders from July 26, 2021, which conditioned the industry's leasing to and management of medical office space).99 Foreign orders, including the national lockdowns and travel bans that closed the movement of foreign buyers into the United States' resort and gateway markets, are facts and circumstances described by category.100 The conventions, trade shows, classes, closings and recurring meetings of this industry that the gathering orders cancelled, converted or capped, with the venue jurisdictions' instruments and the organizers' stated actions, are listed with this page's meetings and in the Library's meetings collection.
The standing duties
Three tiers of command bound every employer in this industry throughout the six quarters whether or not any order named it: the operating conditions written into the orders above; the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, with the offenses that punished disobedience of health and emergency orders; and the liability shields that protected only the complying business. Each is an order from an appropriate governmental authority: a statute that commands conduct is an order.101 The tiers are set out here for eight principal States, Texas, California, Arizona, Ohio, Oregon, Virginia, Washington and Michigan; the fifty-one-jurisdiction table is at /duties.
The first tier is the orders' own conditions of operating. Texas: "Every business establishment in Texas shall operate at no more than 50 percent" of listed occupancy (Ex. TX-021). California: those engaging with reopened businesses "must ... continue at all times to practice physical distancing" (Ex. CA-015). Arizona: every business "shall develop, establish and implement policies based on guidance from the CDC ... and ADHS" (Ex. AZ-019, Ex. AZ-020). Ohio: from November 16, 2020 no retailer "shall be open for business or operate unless in compliance with this Order" (Ex. OH-025, Ex. OH-037). Oregon: the order "and any guidance issued by OHA to implement this Executive Order are public health laws" (Ex. OR-017). Virginia: from March 24, 2020 "All businesses shall, to the extent possible, adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces," and a professional-services business "[w]here telework is not feasible ... must adhere" to them (Ex. VA-004, Ex. VA-007, Ex. VA-009); the reopening order of May 15, 2020 told every business not listed in its section A, this industry among them, that it "should adhere to the Guidelines for All Business Sectors ... as best practices" (Ex. VA-010, § A.1), a recommendation for this industry until 16VAC25-220, applying to "every employer, employee, and place of employment" under VOSH, commanded the same conduct from July 27, 2020 (Ex. VA-036, Ex. VA-037, Ex. VA-038, Ex. DUT-VA-014, Ex. DUT-VA-015). Washington: "No employer may operate ... unless the employer ... complies with all public health authority orders and directives" (Ex. WA-040). Michigan: this industry resumed on May 7, 2020 only "by appointment," with "no more than four people on the premises" and "[n]o in-person open houses" (Ex. SEC-14-023, Ex. MI-027).102 Where an order said "should" or "strongly encouraged," as Texas did for the DSHS protocols and as Texas, Arizona and California did from March 10, March 25 and June 15, 2021, the record says so and the compulsion rests on the statutes and shields below.103
The second tier is the standing statutes. Texas: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001). Knowing refusal to perform or allow control measures is a Class B misdemeanor, disobedience of a published quarantine order a third-degree felony, and violation of an emergency-management order carries up to $1,000 and 180 days in jail (Ex. DUT-TX-002, Ex. DUT-TX-005, Ex. DUT-TX-006, Ex. DUT-TX-012); and "Each employer shall" provide "a place of employment that is reasonably safe and healthful" (Ex. DUT-TX-013). The other seven carry the same three commands: each punishes disobedience of a health rule or order (in Oregon by a civil penalty of up to $500 a day per violation, elsewhere as a misdemeanor) and disobedience of an emergency order as a misdemeanor (in Washington a gross misdemeanor; in Ohio the Director's orders themselves carried the sanction); each commands every employer to furnish a safe and healthful workplace (Ex. DUT-CA-009); and Ohio adds that no person in charge of a place of "trade" shall "negligently fail to take reasonable measures to protect the public from exposure to the contagion" (Ex. DUT-OH-007).104 Five of the eight wrote the pandemic duty into a workplace rule: Washington from May 26, 2020 ("Employers must comply with all conditions for operation required by emergency proclamation," upheld by the Ninth Circuit), Virginia from July 27, 2020, Michigan from October 14, 2020, Oregon from November 16, 2020 and California from November 30, 2020 (Ex. AGY-ST-LABOR-WORKPLACE-078, Ex. DUT-WA-020, Ex. VA-036, Ex. MI-054, Ex. OR-032, Ex. DUT-OR-014, Ex. CA-023). Over all eight lay the general duty clause, "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards" (Ex. DUT-FED-001), enforced by citation from September 2020, including a willful violation affirmed against a tax office whose owner prohibited face coverings and required employees to work within six feet (Ex. LAW-487, Ex. DUT-FED-067, Ex. DUT-FED-073).105
The third tier is the liability shields, which fixed the standard of care as compliance. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020 (Ex. DUT-TX-014, Ex. DUT-TX-015); Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010); Michigan immunizes "A person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19" (Ex. MI-056, Ex. DUT-MI-015). Ohio set a culpability floor and declared that a government order, recommendation or guideline "shall neither create nor be construed as creating a duty of care upon any person" (Ex. DUT-OH-020, § 2(B)); Ohio's compulsion rests on the statutes and order conditions cited above. California, Oregon, Virginia and Washington enacted no business shield: California and Washington treat violation of a statute or rule as negligence or evidence of it, and Oregon's and Virginia's acts reached schools and health-care providers only (Ex. DUT-CA-013, Ex. DUT-WA-013, Ex. DUT-OR-008, Ex. DUT-VA-009). Texas, Arizona and Michigan declared compliance with governmental standards the standard of care; in the other five the standing duty itself, enforced by the safe-workplace statutes and the negligence rules just cited, was the standard. A brokerage that showed by appointment, a title agency that closed by video and a property manager that met residents by appointment was performing that duty; the standing duty was the vessel and the pandemic directives filled it.106