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The COVID Project

How a Real Estate Employer Operates

A real estate employer sells access to physical places and the completion of physical acts: the showing of a home to a stranger, the open house to the public, the appraiser's walk through a borrower's rooms, the acknowledgment of a deed before a notary, the recording of that deed at a public counter, the leasing office's tour, the property manager's entry to a unit and the enforcement of a lease in a courtroom. Every one of those acts happens at a place an order can close, with a counterparty an order can confine, or before a public officer an order can send home. This section describes the industry's functions in operational terms so that the sections that follow can show, order by order, which act each instrument reached.

Four terms are used throughout this page. The "Service" is the Internal Revenue Service; the "Notice" is Notice 2021-20, 2021-11 I.R.B. 922; the "United States" is the Government as litigant; the "Library" is this site's Orders Library, and an exhibit identifier such as Ex. SEC-14-023 links to the instrument's record there. The statutory test the functions are measured against, the Suspension Clause of CARES Act § 2301(c)(2)(A)(ii)(I) and I.R.C. § 3134(c)(2)(A)(ii)(I), is set out element by element at /law/statute; this page applies it to one industry.

The industry's shape

The real estate industry (NAICS 531) comprises lessors of real estate (NAICS 5311), offices of real estate agents and brokers (NAICS 5312) and activities related to real estate (NAICS 5313), the last including real estate property managers (531311 and 531312), offices of real estate appraisers (531320) and other real estate activities (531390); the title and escrow trades sit in direct title insurance carriers (524127) and title abstract and settlement offices (541191).1 The Bureau of Labor Statistics counted about 1.75 million employees in NAICS 531 in January 2020 across about 436,000 establishments, and the same series records the loss of 107,400 of those jobs between January and April 2020.2 Employers of this class are small: a brokerage office with a broker, an office manager, transaction coordinators, marketing and photography staff and licensed agents, many of them independent contractors, whose transactions are the office's revenue; a property-management company with leasing agents, maintenance technicians, porters and an accounting staff; a title or escrow agency with examiners, escrow officers, closers and post-closing staff; an appraisal firm with certified appraisers and trainees. The employees whose wages the credit reaches are the salaried staff of those offices, and the functions below are the functions those employees perform or support.3

This page codes the industry's functions as follows.

SH, showings and open houses

A listing agent admits prospective buyers or tenants to an occupied or vacant property, in person, singly by appointment or collectively at an open house; a buyer's agent accompanies purchasers through a series of homes in an afternoon. The function occurs inside a third party's dwelling, involves persons from different households in one room, and is the origin of every commission the brokerage earns. Orders reached it by name (Michigan's "[a]ny showings ... must be performed by appointment and must be limited to no more than four people on the premises"; Pennsylvania's "no more than the real estate professional and two people inside a property"), by gathering caps that made every open house unlawful, by stay-at-home orders that confined the buyer, and by the workplace infection-prevention and exposure-control orders of the Delta wave, universal indoor face coverings foremost among them, that governed every indoor showing.4

LS, listings, marketing and photography

A listing is taken at the seller's home, measured, staged and photographed; the photographer, stager and videographer enter the property; the listing is marketed through the multiple listing service and through broker open houses. Michigan's order named "photography or videography" among the acts confined to appointment and four persons, and Pennsylvania's guidance compelled "virtual tours, virtual showings and virtual open houses" as the substitute for the in-person event.5

CL, closings, notaries, recorders and title

A conveyance requires an acknowledged deed and, for a financed sale, an acknowledged mortgage; the acknowledgment is a notarial act which every State's law required to occur in the notary's physical presence until emergency instruments suspended that rule; the instruments must then be recorded at a county recorder's or clerk's counter or through an e-recording system the county has adopted; the title company examines the public record the recorder maintains and issues the policy at the closing table. Twenty-plus States issued emergency remote-notarization instruments between March 19 and May 4, 2020; recorders' counters closed in the major metropolitan counties in March 2020; the closing table, the notary's desk and the recorder's window were each reached by order.6

PM, property management

A property manager collects rent, enforces the lease, enters units for inspection and repair, operates the building's common areas, gyms, pools, clubhouses and leasing office, and evicts for nonpayment through a summary proceeding in a State court. The federal eviction orders were addressed to "a landlord, owner of a residential property, or other person with a legal right to pursue eviction"; State moratoria in at least thirty-four States and the District of Columbia and the eviction stays of State supreme courts closed the dockets; State fitness, pool and gathering orders closed the amenities; Wisconsin's, Utah's and Milwaukee's orders barred landlords from entering leased premises except for emergencies.7

LE, leasing offices

A leasing office is a retail storefront for apartments: walk-in traffic, tours of model and vacant units, application processing and lease signing at a desk. It fell under every office and retail capacity order, every face-covering and exposure-control order and every appointment-only condition of the reopening plans.8

AP, appraisals and inspections

An appraiser inspects the interior and exterior of the property, measures it and photographs it; a home inspector spends hours inside it with the buyer present. The stay-at-home orders limited interior access, and the federal housing regulators authorized exterior-only and desktop appraisals as the compelled substitute from March 23, 2020 through May 31 and June 30, 2021; Michigan's and Pennsylvania's orders named "appraisals" and "inspections" among the acts confined to appointment and party caps.9

CM, commercial leasing and tenant closures

A commercial brokerage or landlord leases retail, office and hospitality space to tenants whose own operations were closed or capped by the restaurant, retail, fitness, personal-care and office orders of every State; commercial eviction moratoria (Oregon's, Seattle's, Nevada's, New Jersey's early order, Massachusetts' small-business provision, Illinois' non-residential enforcement bar) reached the landlord's remedy directly.10

HR, hiring, licensing and training

Salesperson and broker licensing examinations, continuing education and pre-licensing courses are given in person at testing centers and classrooms; State real estate commissions suspended or converted them, and the workforce's entry into the industry was delayed accordingly.11

OP, office premises and telework

The brokerage office, the title agency's closing rooms and the property manager's back office are workplaces reached by the closure, telework, capacity and workplace infection-prevention orders addressed to every business; Kentucky's order named the industry and commanded that "[p]rofessional services firms must implement telecommuting and remote work to the fullest extent possible."12

WF, workforce availability

The industry's staff were confined by stay-at-home orders, kept home by school and child-care closures and by the paid-leave mandate of the Families First Coronavirus Response Act, quarantined by health-officer orders, and conditioned in their commutes from February 1, 2021 by the CDC's conveyance order, the federal airborne-transmission control that required face coverings on every conveyance and at every transportation hub.13

CB, the customer base

Buyers, sellers, tenants, landlords, lenders and investors were confined by stay-at-home orders, quarantined on interstate travel, and, as businesses, closed or capped by the orders on their own industries; the demand for space and the ability to view it moved with those orders.14

The revenue lines

A brokerage earns a commission, customarily five to six percent of the sale price divided between the listing and selling sides, payable only at closing; a sale that cannot be shown cannot be sold, and a sale that cannot be closed pays no commission. A title or escrow agency earns a settlement fee and a title-insurance premium per closing. An appraisal firm earns a fee per completed report. A property manager earns a percentage of collected rent, customarily six to twelve percent, and leasing commissions on new tenancies. Every line is transactional; none is earned until a physical act is complete, and the function-by-function section below cites the instrument that reached each act.

Inputs and counterparties

The industry's counterparties are the recorders and clerks who make a conveyance effective; the notaries who acknowledge it; the lenders, appraisers and inspectors whose work precedes it; the courts that hear evictions; the multiple listing services, photographers, stagers and moving companies of the transaction; the licensing boards that admit its workforce; the schools that keep its workforce's children; the transit systems that carry its staff and customers; and the tenants of every commercial building, whose own orders determined whether rent was paid and space was leased. For each class the orders that reached it are set out in the layers section below: the recorder and clerk closures and remote-notarization orders (the sector regulators and the counterparties); the court eviction stays (the counterparties); the licensing and examination suspensions (the sector regulators); the school, leave and transit orders (the ecosystem); and the orders on tenants' industries (the counterparties, and the companion analyses of those industries on this site).15

The workforce

Office staff live in the metropolitan area they serve and commute by car or transit; agents work from the office and from their cars; maintenance and leasing staff work on site at the properties they manage. Their children attended schools that closed in March 2020 and stayed remote or hybrid through the 2020-21 school year in most large districts; their commutes fell under the CDC conveyance order and the TSA directives from February 1, 2021; their exposure to a positive case placed them under the isolation and quarantine orders of their State and county health officers throughout the period.

Seasonality and geography

Residential sales peak in the spring and summer; the March-through-June 2020 stay-at-home orders fell across the industry's principal selling season, and the appointment-only and party-cap conditions of the reopening plans governed the summer that followed. The industry exists in every county of the United States, which is why the fifty-State table on this page and the metro pages of this site are the record of its suspension rather than any one State's order.

The counterparty map

For each counterparty class the following orders, by category, reached it: buyers, sellers and tenants, the stay-at-home, gathering and travel-quarantine orders of every State (the fifty States, below); recorders and clerks, the county closure notices and the State orders closing public offices (the counterparties); notaries, the emergency remote-notarization instruments (the sector regulators); appraisers, the federal appraisal-flexibility instruments and the stay-at-home orders (the federal layer and the sector regulators); courts, the judicial-emergency and eviction-stay orders (the counterparties); commercial tenants, the closure and capacity orders on their industries (the counterparties); the workforce, the school, child-care, leave, quarantine and conveyance orders (the ecosystem); lenders and servicers, the CARES Act, HUD, FHFA and CFPB instruments (the federal layer).

  1. Office of Management and Budget, North American Industry Classification System (2017), sector 53 (Real Estate and Rental and Leasing), subsector 531 and industries 5311, 5312, 5313, 531311, 531312, 531320 and 531390; industries 524127 (Direct Title Insurance Carriers) and 541191 (Title Abstract and Settlement Offices). ↩
  2. Bureau of Labor Statistics, Current Employment Statistics, Real Estate (NAICS 531), seasonally adjusted, January 2020 (1,745,000) and April 2020 (1,637,600); Bureau of Labor Statistics, Quarterly Census of Employment and Wages, NAICS 531 establishments (first quarter 2026, preliminary) (each read September 26, 2026). ↩
  3. The functions are those named in the orders themselves. Governor of Michigan, Executive Order 2020-70, § 10(h) (May 1, 2020) (Ex. SEC-14-023) ("workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds"); Office of the Governor and Department of State of Pennsylvania, Guidance for Businesses in the Real Estate Industry Permitted to Operate During the COVID-19 Disaster Emergency (May 19, 2020) (Ex. SEC-14-020) (naming "real estate professionals, appraisers, notaries, title companies, settlement service providers, escrow officers, home inspectors, mortgage loan originators"). ↩
  4. Ex. SEC-14-023, § 10(h)(1)-(2); Ex. SEC-14-020; Governor of New Jersey, Executive Order No. 107 (Mar. 21, 2020) (Ex. NJ-004) (gatherings prohibited; the Real Estate Commission's guidance under it confined showings to appointment and barred open houses); Governor of Nevada, Declaration of Emergency Directive 013 (Apr. 8, 2020) (Ex. NV-014) (showrooms of businesses designated essential closed; open houses barred); County of Los Angeles Health Officer, Responding Together at Work and in the Community, Beyond the Blueprint (July 16, 2021) (Ex. MET-LA-018) (masks in all indoor public settings from 11:59 p.m. July 17, 2021). See the layers section and the fifty-State table on this page. ↩
  5. Ex. SEC-14-023, § 10(h)(1) ("photography or videography"); Ex. SEC-14-020 ("Utilize electronic marketing ... including virtual tours, virtual showings and virtual open houses"). ↩
  6. Governor of Illinois, Executive Order 2020-14 (Mar. 26, 2020) (Ex. SEC-14-055) (also filed as Ex. IL-007 and Ex. ECO-C-113) (the requirement to "appear before" a notary "is satisfied if the Notary Public performs a remote notarization via two-way audio-video communication"); Governor of Connecticut, Executive Order No. 7Q (Mar. 30, 2020) (Ex. SEC-14-041) (also Ex. ECO-C-111); Governor of Maryland, Executive Order 20-03-30-04, Authorizing Remote Notarizations (Mar. 30, 2020) (Ex. SEC-14-040) (also Ex. AGY-ST-DMV-SOS-RECORDERS-042); Governor of Georgia, Executive Order 03.31.20.01 (Mar. 31, 2020) (Ex. SEC-14-035) (also Ex. ECO-C-115); Kentucky Senate Bill 150, 2020 Ky. Acts ch. 73 (Mar. 30, 2020) (Ex. SEC-14-031); Governor of Michigan, Executive Order 2020-41 (Apr. 8, 2020) (Ex. SEC-14-026) (also Ex. AGY-ST-DMV-SOS-RECORDERS-041); N.J. P.L. 2020, c. 26 (Apr. 14, 2020) (Ex. SEC-14-019) (also Ex. ECO-C-114 and Ex. AGY-ST-DMV-SOS-RECORDERS-038); Pa. Act 15 of 2020 (Apr. 20, 2020) (Ex. SEC-14-062) (also Ex. ECO-C-117); Mass. Acts 2020, ch. 71 (Apr. 27, 2020) (Ex. SEC-14-053) (also Ex. ECO-C-116 and Ex. AGY-ST-DMV-SOS-RECORDERS-039); N.C. Sess. Law 2020-3, Part IV, § 4.1 (May 4, 2020) (Ex. SEC-14-034) (also Ex. AGY-ST-DMV-SOS-RECORDERS-043); Governor of New York, Executive Order No. 202.7 (Mar. 19, 2020) (Ex. AGY-ST-DMV-SOS-RECORDERS-036) (also Ex. ECO-C-112); Governor of Texas, suspensions of statutory notary-presence requirements under Tex. Gov't Code § 418.016, announced Apr. 8, 2020 for wills, powers of attorney, directives to physicians and oaths (Ex. AGY-ST-DMV-SOS-RECORDERS-044) and Apr. 27, 2020 for real estate instruments, including Tex. Gov't Code § 406.016 (Ex. SEC-14-070), each in force "until terminated by the Office of the Governor"; Governor of Mississippi, Executive Order No. 1467 (Apr. 6, 2020) (Ex. AGY-ST-DMV-SOS-RECORDERS-113); Governor of Nebraska, Executive Order No. 20-13 (Apr. 1, 2020) (Ex. AGY-ST-DMV-SOS-RECORDERS-046); Vt. Act 95 of 2020 (Apr. 28, 2020) (Ex. AGY-ST-DMV-SOS-RECORDERS-050). Recorder closures: Cook County Clerk (Ex. AGY-ST-DMV-SOS-RECORDERS-052); Maricopa County Recorder (Ex. AGY-ST-DMV-SOS-RECORDERS-054); San Diego County Assessor/Recorder/County Clerk (Ex. AGY-ST-DMV-SOS-RECORDERS-057); Fulton County Clerk (Ex. AGY-ST-DMV-SOS-RECORDERS-062); Dallas County Clerk (Ex. AGY-ST-DMV-SOS-RECORDERS-065, Ex. AGY-ST-DMV-SOS-RECORDERS-114); Tarrant County Clerk (Ex. AGY-ST-DMV-SOS-RECORDERS-072); Mecklenburg County Register of Deeds (Ex. AGY-ST-DMV-SOS-RECORDERS-075); Fayette County Clerk (Ex. MET-SDF-021, Ex. MET-SDF-022, Ex. MET-SDF-036). The Cook County, Fulton County, Dallas County (press release and website notice) and Mecklenburg County announcements are agency communications, cited as context and as evidence of the closures; the orders under which those offices closed are cited in the recorders and clerks subsection of the layers section below. ↩
  7. 85 Fed. Reg. 55292, 55296 (Sept. 4, 2020) (Ex. SEC-14-001); the State moratoria cited in the layers section and the fifty-State table; Supreme Court of Texas, Fourth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9045 (Mar. 19, 2020) (Ex. TX-057) (also Ex. ECO-C-062); Supreme Court of South Carolina, Order re Statewide Evictions and Foreclosures (Mar. 18, 2020) (Ex. SC-046); Supreme Court of New Mexico, Order No. 20-8500-007 (Mar. 24, 2020) (Ex. NM-009); Salt Lake County Public Health Order 2020-03, Stay Safe, Stay Home (Mar. 29, 2020) (Ex. MET-SLC-042) (landlords barred from entering leased premises except for emergency maintenance); City of Milwaukee Commissioner of Health, City-wide Stay-At-Home Order (Mar. 23, 2020) (Ex. MET-MKE-030) (same); Public Health Madison & Dane County, Emergency Order #2 (May 18, 2020) (Ex. MET-MKE-005). ↩
  8. See the fifty States (the office and retail capacity orders) in the layers section and the leasing-office function (LE) in the function-by-function section below. ↩
  9. Fannie Mae, Lender Letter LL-2020-04, Impact of COVID-19 on Appraisals (Mar. 23, 2020, updated through Dec. 10, 2020) (Ex. SEC-14-012) (exterior-only and desktop appraisals; flexibilities ended May 31, 2021); HUD, FHA, Mortgagee Letter 2020-05 (Mar. 27, 2020) (Ex. SEC-14-010); HUD, FHA, Mortgagee Letter 2021-06 (Feb. 23, 2021) (Ex. SEC-14-084) (to June 30, 2021); OCC, Board of Governors and FDIC, Real Estate Appraisals, interim final rule, 85 Fed. Reg. 21312 (Apr. 17, 2020) (Ex. SEC-14-007) (also Ex. AGY-FED-FINANCIAL-017) (appraisals deferred up to 120 days after closing for transactions closed on or before Dec. 31, 2020); Federal Housing Finance Agency, direction to the Enterprises of Mar. 23, 2020 (Ex. AGY-FED-FINANCIAL-098); Ex. SEC-14-023, § 10(h)(1) ("inspections, appraisals"); Ex. SEC-14-020 (appraisals and inspections "by appointment"). ↩
  10. Governor of Oregon, Executive Order No. 20-13 (Apr. 1, 2020) (Ex. SEC-14-063) ("temporary moratorium on terminations of residential and non-residential rental agreements and evictions on the basis of nonpayment"); Mayor of Seattle, Civil Emergency Order, Moratorium on Small Business Tenant Evictions (Mar. 17, 2020) (Ex. MET-SEA-007) (extended without interruption to Sept. 30, 2021 and then Jan. 15, 2022, Ex. MET-SEA-017, Ex. MET-SEA-019); Mass. Acts 2020, ch. 65 (Apr. 20, 2020) (Ex. SEC-14-052) (small-business units); Governor of Illinois, Executive Order 2020-30, § 3 (Apr. 23, 2020) (Ex. SEC-14-056) (no enforcement of non-residential evictions); the orders on the tenants' industries in the companion analyses on this site. ↩
  11. See the sector regulators in the layers section and the hiring, licensing and training function (HR) in the function-by-function section below. ↩
  12. Governor of Kentucky, Executive Order 2020-257, § 1(o) (Mar. 25, 2020) (Ex. SEC-14-030) ("Professional services firms must implement telecommuting and remote work to the fullest extent possible, and should only use in-person interaction to support Minimum Basic Operations or where telecommuting is impossible"); Governor of New York, Executive Order No. 202.8 (Mar. 20, 2020) (Ex. NY-002); Governor of Oregon, Executive Order No. 20-12 (Mar. 23, 2020) (Ex. OR-007) ("Work in offices is prohibited whenever telework and work-at-home options are available"); Secretary of Health of Pennsylvania, Order of Nov. 23, 2020 (Ex. PA-022) ("Unless impossible, all businesses must conduct their operations remotely"). ↩
  13. Families First Coronavirus Response Act, Pub. L. 116-127, 134 Stat. 178 (Mar. 18, 2020) (Ex. FED-170); Department of Labor, Paid Leave Under the Families First Coronavirus Response Act, temporary rule, 85 Fed. Reg. 19326 (Apr. 6, 2020) (Ex. ECO-B-002); CDC, Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 (Feb. 3, 2021) (Ex. FED-020); the school-closure and quarantine orders cited in the ecosystem subsection of the layers section. ↩
  14. See the fifty States and the counterparties in the layers section and the customer-base function (CB) in the function-by-function section below. ↩
  15. For the orders on the industry's commercial tenants, see the companion analyses on this site: Restaurants and Food Service, Retail Trade, Personal Care and Other Services, Fitness, Arts, Entertainment and Sports, Professional and Information Services and Hotels, Travel and Tourism (together, the "companion analyses"). ↩