Empire State Development's Guidance to New York Governor's Executive Order No. 202.6 as it Relates to the Real Estate Industry: What Real Estate Services are Considered Essential Businesses?

Alerts / April 7, 2020

On Wednesday, March 18, the governor of New York, Andrew M. Cuomo, issued Executive Order No. 202.6 – Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (EO 202.6), which, among other things, promulgated limitations on nonessential businesses and not-for-profit entities located in the state. Subsequently, Governor Cuomo issued Executive Orders 202.8 and 202.13, which, in part, created further restrictions on nonessential business activities within New York State. EO 202.6 tasked the Empire State Development Corporation (ESD) with the responsibility and authority to issue guidance as to which businesses are to be deemed essential.

On Wednesday, April 1, the New York State Association of Realtors informed its membership that the ESD granted commercial and residential real estate showings, back-office real estate work, appraisal services, and home inspections essential business status.[1] Since then, various media sources as well as the Real Estate Board of New York have provided additional information and clarification.[2] These sources indicated that broker showings must be done virtually.[3]

Pursuant to our direct discussions with a representative of the ESD on April 6, the only formal guidance provided by the ESD is the “ESD Guidance on Essential Businesses,” available here. As of 11 a.m. today, April 7, the ESD guidance, which was last updated March 27, does not yet include real estate brokerage services, appraisal services and home inspection services as essential businesses. The ESD has advised that until updated official guidance is released, all such service providers should apply for designation as an essential business for purposes of EO 202.6. Applications may be completed on the ESD’s website. In addition, the ESD has advised that permitted services should be performed only in strict accordance with the social distancing guidelines promulgated by the Centers for Disease Control and Prevention.

We will continue to monitor ESD’s guidance on what aspects of the real estate industry are considered essential and will provide updates on this issue as more information becomes available.

Authorship Credit: Michael Iannuzzi and Nicholas Melillo

[1] ESD has deemed specific real estate brokerage activities as essential, New York State Association of Realtors, [accessed April 6, 2020].
[2] Sylvia Varnham and E.B. Solomont, Virtual showings only: State clarifies “essential business” announcement, The Real Deal, [Note: online version accessed April 6, 2020]; Executive Order: Essential Real Estate Operations, Real Estate Board of New York, [accessed April 6, 2020]
[3] Id.

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