You’re in the middle of a pandemic.
You have two small children, and you and your partner both work from home.
Your landlord calls you and says, “The house is going up for sale, and we’re going to have people through; probably a lot of contractors/builders/renovators who will walk the lot, and will want to check out the layout on the inside.”
What do you do?
Well, I told a client of mine, “Explain to your landlord that we’re in the middle of a pandemic, and that you don’t want construction workers trudging through your home.”
Yeah, I know I’m insinuating that construction workers are somehow dirty or dirtier than John & Jane Buyer, but, well, they are. Two guys wearing muddy boots, drywall-dusted plaid jackets, greasy fingers, maybe even reeking of cigarettes, who knows. I type-cast, I’ll admit. But I do this because I’m taking the side of my client, and trying to win an argument.
Do you want these guys trekking through your house every day, during a pandemic?
My clients didn’t. And they told their landlord exactly that.
With their lease coming to an end shortly, there was no real reason why the landlord couldn’t wait, and have unfettered access to the home, with nobody to bother, and nobody to potentially get sick.
Since the state of emergency was declared on March 17th, there’s been no shortage of discussions about access to properties, specifically when access should be allowed, what precautions should be taken, and what process the parties should put in place and follow.
In late-March, some brokerages were not allowing any in-person showings at all! Viewings were all “virtual” and offers were conditional upon viewing.
As COVID has slowed down, as panic has declined, and as agents have been diligent in providing hand sanitizer, masks, and gloves at properties, and ensuring there are no double-bookings on showings, access has been made easier.
But what about tenanted properties?
What rights to tenants have?
And what about condominium management? Can they “ban” showings in a certain building?
Before I give you my two cents, here’s a letter that the President of the Ontario Real Estate Association sent out to our members this week:
At OREA we are working hard to provide Members with the information they need to transact safely during this COVID-19 State of Emergency.
As part of our We Have Your Back – COVID-19 Relief Plan, OREA has provided members with guidance on the use of videographers and other real estate services, open houses, virtual open houses, in-person business and most recently guidance on real estate transactions during stage one of Ontario’s re-opening.
On that note, I want to share with you a recent legal opinion OREA has obtained on real estate showings.
Are Real Estate Showings Prohibited in Condominiums or Tenanted Properties?
It was recently brought to our attention that certain condominium buildings are refusing to permit real estate showings of listed properties.
Let’s be clear. Members should endeavour to use digital tools and remote interaction with clients wherever possible. However, if needed, Members should know that there are simply no prohibitions in Ontario law, including the State of Emergency Orders, against in-person showings.
In order for private showings to proceed they must comply with all recommendations, advice, directives and instructions from public health officials (including local public health officials), especially with respect to physical distancing, use of personal protective equipment (such as masks and gloves), cleaning and disinfecting before and after the showing.
To help members navigate real estate transactions safely during stage one of Ontario’s re-opening of the provincial economy read OREA’s Guidance on Real Estate Transactions in Stage One of Ontario’s Framework for Reopening the Province.
Can a Tenant or Condo Manager Refuse a Showing?
Ontario’s Residential Tenancies Act, 2006 (the “RTA”) provides landlords the rights to enter the rental unit in certain circumstances when the landlord follows the procedures set out in the “RTA”.
Section 27(2) of the RTA provides that the landlord, or, with the landlord’s written authorization, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit provided that they have given written notice to the tenant at least 24 hours before they enter to allow a potential purchaser to view the unit.
In any case where at least 24 hours written notice has been given to the tenant, the written notice must set out:
• The reason for entry;
• The date the landlord will enter; and
• The time of entry between 8:00 a.m. and 8:00 p.m.
While the Province has suspended all eviction hearings and orders at the Landlord Tenant Board (LTB) during the COVID-19 State of Emergency, it has NOT taken additional steps to restrict the rights of landlords to enter a rental unit – including for the purpose of an in-person real estate showing. Landlords continue to be legally permitted to enter a unit for the purposes outlined under section 27(2) of the RTA.
OREA strongly encourages landlords and REALTORS® to work with their tenants to accommodate their needs, do virtual showings wherever possible and ensure they are not in the property during showings. No one with an underlying health condition should be forced to permit strangers into their home during the COVID-19 state of emergency. In these instances, it is critically important that REALTORS® work proactively and positively with tenants to accommodate their concerns around health and safety.
Where in-person showings are essential, REALTORS® should ensure that they along with their clients are wearing personal protective equipment, sanitizing surfaces after each showing, limiting the number of people in units and following all OREA’s guidelines for stage one real estate transactions.
REALTORS® should take every care not to put tenants at risk and to try and schedule showings to limit the amount of times people are going through the property. In particular, REALTORS® should work with landlords to get to know the tenant and if they have any underlying health issues.
There are, however, some limitations on the ability to do showings of properties REALTORS® should be aware of. They include but are not limited to the following:
• If the property is a condominium property, the owner of the property may be subject to condominium rules that prohibit real estate showings;
• The Landlord Tenant Board has specifically contemplated showings of tenanted properties and noted that landlords are strongly advised to follow the guidance of the Real Estate Council of Ontario (RECO) and avoid in-person showings;
• Even where there is permission pursuant to section 27(2) of the RTA, the Ontario Human Rights Code (HRC) still applies and requires accommodation for persons with disabilities. Persons with illnesses who could be endangered by an in-person showing should, in accordance with the Ontario HRC, be accommodated; and,
• Commercial, institutional and industrial tenancies have no specific permissions for landlords to conduct showings under the RTA and neither do owned or life lease residential properties.
If you have questions or comments about any of the above information please do not hesitate to reach out to me at President@orea.com.
Thank you and stay safe everyone.
So that is OREA’s stance on this, and as with any political statement, it provides a basic opinion and then scales it back with all kinds of qualifiers.
The bottom line is this: access is still permitted legally. But practically, it’s not always going to be.
There will be tenants who refuse access. And as I showed above, I’m all for it. In some cases.
In others, I’m not.
Call me a hypocrite, but I’m doing my job, and looking after my clients, whether they’re buyers, sellers, or tenants.
I have a listing in downtown Toronto condo, and after a full month of preparation, including a massive renovation, we were set to list.
Then right as were about to go to market, property management emailed us to say that, “at this time, showings are not permitted.”
I was stunned. Absolutely stunned!
How could this be? Who made this decision? How long had this been in effect, and what would have to transpire for this restriction to be lifted?
So I sent the property manager and the superintendent the following email:
I received the email below from the owners of Suite # (redacted) regarding real estate showings.
This news comes as a tremendous surprise and disappointment to (Owners Names) who own Suite # (redacted), and are preparing for a sale.
As an active agent in the downtown core, I can tell you that there are only a handful of buildings that have this no showing policy, and those are typically buildings by the waterfront with senior citizens as primary occupants.
There is nothing in the provincial emergency order that precludes condominiums from permitting real estate showings. This has been confirmed by the Toronto Real Estate Board and the Ontario Real Estate Association.
Could you kindly provide some clarification?
1) Is the decision to not allow property showings in the building the decision of Royale Grande Property Management Ltd or the TSCC (redacted)’s Board of Directors?
2) Notwithstanding the above, is this a policy for all properties managed by Royale Grande Property Management Ltd.?
3) Unit #1538 was just listed for sale today with the note: “Easy To Show With Lockbox Located At Front Desk.” Can you please clarify why this unit is permitted to conduct showings, but we are not?
Your help in this matter is greatly appreciated.
And guess what?
The next day, the property manager called me and said, “Okay, we’ll let you do showings, but don’t tell anybody.”
What is the policy in this building?
Is it possible that a squeaky-wheel like myself sent a stern email and they just backed down?
What if the next agent doesn’t follow up? Will that agent be forced to wait until July or August?
The property manager couldn’t even tell me if the decision was the Board of Directors’ or not. She didn’t know where the order had come from. It seemed as though she was making it up on the spot.
She said, “I think we’re going to wait for the state of emergency to be lifted, but I don’t know.”
I would really, really hate to think that they’re running this building, and enforcing rules, on a case-by-case basis.
I am of the opinion that, provided buyers and agents will wear a mask and gloves, that a property owner should be permitted to list their property for sale, and have buyers and agents come into the building.
I understand that we’re in a pandemic and that these are tough times, people are sick and dying, and that precautions must be taken, but is it legal for a condominium, whether the Board of Directors, or the property manager, to “ban” real estate showings?
I don’t think it is.
What about banning dog-walkers, cleaners, and delivery-people? Are there buildings that aren’t accepting Amazon packages? Were there, say, in early-April?
Yup. All of the above.
But whether or not any of this is “legal” is still up for debate, and I think ten real estate lawyers, ten human rights lawyers, and ten employment lawyers would give you thirty different explanations of their answers.
For now, there are tenants that are saying “no” to real estate showings.
And for now, there are still condominiums downtown that aren’t allowing any agents to show properties either.
There’s no rhyme or reason here; it’s all case-by-case, as we figure out, collectively as a society, how to move forward in this interesting new world…Back To Top Back To Comments