Real Estate

The Six Quarters

In each of the six calendar quarters from April 1, 2020 through September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the first day and the last day of the quarter and on every day between, and in each quarter they caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. This section states the orders in force in each quarter, how they reached the functions, and the finding in Tri-State's terms. The third quarter of 2021 is treated at length because it is the quarter for which the Service's letters most often say that no orders were in effect.

The second quarter of 2020

On April 1, 2020, in-person brokerage was prohibited or confined to virtual and legally necessary acts in Pennsylvania, Michigan, New York, New Jersey, Vermont, Delaware, Washington and the San Francisco Bay Area; the industry operated as an essential service under stay-at-home conditions in Illinois, Ohio, Indiana, Kentucky, Wisconsin, Tennessee, Alabama, Minnesota, North Carolina, New Mexico (essential "limited to minimized operations and staff"), Arizona, Texas and the other Illinois-list States; open houses were unlawful under gathering caps of ten in forty-two States, of six in Connecticut and of five in New Mexico and Rhode Island, and under South Carolina's standing authorization to disperse any public gathering of three or more; the recorders' counters of the major metropolitan counties were closed by their own notices or under the stay-at-home orders; emergency remote-notarization instruments were in force in New York, Illinois, Connecticut, Maryland, Georgia and Kentucky, followed within the quarter by Michigan (April 8), Texas (April 8 and 27), Mississippi (April 6), Nebraska (April 2), Missouri (April 6), Maine (April 8), Georgia's general order (April 9), Kansas (April 9), Tennessee (April 9), New Jersey (April 14), Pennsylvania (April 20), Massachusetts (April 27), Vermont (April 28), South Carolina's video closings (May 1) and North Carolina (May 4); eviction and foreclosure moratoria were in force under CARES Act § 4024, HUD Mortgagee Letter 2020-04 and FHFA's direction and under the orders of New Jersey, Michigan, Indiana, New Hampshire, Washington, Kansas, Minnesota, Arizona, Delaware, California, Oregon, New York, Colorado, Kentucky, Iowa, Nebraska, Wisconsin, Nevada, Montana and Maryland, joined within the quarter by Florida (April 2), Utah (April 2), Alabama (April 3), Mississippi (April 3), Connecticut (April 10), Hawaii (April 16), Maine (April 16), Massachusetts (April 20), Illinois (April 23), Pennsylvania (May 7), Vermont (May 14) and North Carolina (May 30) and by the eviction stays of the Supreme Courts of Texas, South Carolina, New Mexico, Virginia, Tennessee, Oklahoma and Pennsylvania and the Judicial Council of California; and the exterior-only and desktop appraisal instruments of Fannie Mae, FHFA and FHA were in force, joined by the interagency deferral rule on April 17.¹⁰⁷ On June 30, 2020, Michigan's open-house prohibition had ended on June 1 and its appointment and party-cap rule had governed May 7 through May 31; Pennsylvania's Real Estate Industry Guidance governed every county not yet in the Green phase; New York's in-person showings had resumed by region under the Real Estate Guidelines, New York City's on June 22; Washington's Real Estate Requirements confined showings to two, then five, persons with no open houses before Phase 3; Los Angeles County and the Bay Area confined showings to appointment and vacant units; CARES Act § 4024 ran to July 24; State moratoria were in force in New Jersey, New York, California, Illinois, Washington, Minnesota, Oregon, Connecticut, Massachusetts, Pennsylvania, Florida, Nevada, Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Kentucky, Michigan, Arizona, Colorado, Maine, Vermont and North Dakota; and the first statewide and county face-covering orders, the earliest of the workplace infection-prevention and exposure-control requirements that would govern indoor showings and closings for the rest of the period, were in force.¹⁰⁸ The federal layer ran throughout: the FFCRA leave mandate from April 1, the entry proclamations of January 31, April 22 and June 22, the Title 42 order and the Form I-9 deferral.¹⁰⁹

SH: prohibited outright in the closure States through May 6 (Michigan), May 18 (Pennsylvania), May 29 to June 22 (New York) and the Bay Area's vacant-unit rule; confined to minimized operations under a prohibition of every gathering of five or more in New Mexico to May 15; confined everywhere else to appointment showings under gathering caps that made every open house unlawful; Michigan's four-person and Pennsylvania's three-person rules from May 7 and May 19.¹¹⁰ LS: photography and videography confined to appointment (Michigan); virtual tours and virtual open houses compelled as the marketing format (Pennsylvania).¹¹¹ CL: recorders' counters closed in Cook, Maricopa, San Diego, Fulton, Dallas, Tarrant, Mecklenburg, Montgomery (Pennsylvania), Fayette and Jefferson (Kentucky) Counties; the notarial physical-presence rule suspended in twenty-plus States; New York's courts and county clerks accepting no non-essential filings from March 22; Michigan's registers of deeds among the workers permitted to resume only on May 7.¹¹² PM: eviction filings and executions barred by federal and State order in at least thirty-four States and the District of Columbia and by court stay in others; amenities closed under the fitness, pool and gathering orders; entry to leased premises barred except for emergencies in Milwaukee, Salt Lake County and Utah.¹¹³ LE: leasing offices closed or confined to appointment under the office and retail closures of every stay-at-home State, and capped under the reopening orders' occupancy rules.¹¹⁴ AP: interior inspections limited by the stay-at-home orders; exterior-only and desktop appraisals prescribed as the substitute; appraisals deferred 120 days under the interagency rule; Michigan's and Pennsylvania's appointment rules named appraisals and inspections.¹¹⁵ CM: every commercial tenant's operations closed or capped; Oregon's, Washington's, Seattle's, Illinois' and Massachusetts' orders barred non-residential and small-business evictions.¹¹⁶ HR: licensing examinations and in-person continuing education suspended under the gathering and closure orders; OP: brokerage and title offices closed or reduced to telework in the closure States and ordered to telework "to the fullest extent possible" in Kentucky; WF: staff confined by stay-at-home orders, kept home by school closures and the FFCRA mandate; CB: buyers, sellers and tenants confined to their homes and permitted to leave only for enumerated purposes, out-of-State buyers quarantined in Hawaii from March 26 and in New York, New Jersey and Connecticut from June 25.¹¹⁷

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the stay-at-home and business-closure orders of forty-two States and the District of Columbia (Ex. PA-002, Ex. MI-011, Ex. NY-002, Ex. NJ-004, Ex. VT-010, Ex. NM-006, Ex. DE-005, Ex. WA-016, Ex. CA-002, Ex. SEC-14-057, Ex. SEC-14-027, Ex. SEC-14-028, Ex. SEC-14-030, Ex. SEC-14-067, Ex. SEC-14-077, Ex. SEC-14-078, Ex. SEC-14-068, Ex. SEC-14-085 and the lead instruments of the fifty-State table), the industry-specific reopening conditions (Ex. SEC-14-023, Ex. SEC-14-074, Ex. SEC-14-020, Ex. NY-120, Ex. WA-109, Ex. VT-014, Ex. VT-015, Ex. MET-LA-006, Ex. MET-SFO-003), the gathering caps (Ex. CT-010, Ex. RI-009, Ex. RI-010, Ex. SC-006, Ex. MD-004, Ex. NM-007), the recorder closures (Ex. AGY-ST-DMV-SOS-RECORDERS-054, Ex. AGY-ST-DMV-SOS-RECORDERS-057, Ex. AGY-ST-DMV-SOS-RECORDERS-072, Ex. MET-PHL-086, Ex. MET-SDF-021, and the Cook, Fulton, Dallas and Mecklenburg closures made under Ex. SEC-14-057, Ex. MET-CHI-001, Ex. GA-010, Ex. MET-ATL-001, Ex. MET-DFW-005 and Ex. MET-CLT-018 and recorded in the announcements Ex. AGY-ST-DMV-SOS-RECORDERS-052, Ex. AGY-ST-DMV-SOS-RECORDERS-062, Ex. AGY-ST-DMV-SOS-RECORDERS-065 and Ex. AGY-ST-DMV-SOS-RECORDERS-075, cited as context) and the remote-notarization instruments (Ex. SEC-14-055, Ex. SEC-14-041, Ex. SEC-14-040, Ex. SEC-14-035, Ex. GA-015, Ex. SEC-14-031, Ex. SEC-14-026, Ex. SEC-14-019, Ex. SEC-14-062, Ex. SEC-14-053, Ex. SEC-14-034, Ex. ME-016, Ex. MO-011, Ex. KS-013, Ex. TN-010, Ex. SC-049, Ex. SC-050), the federal and State eviction and foreclosure moratoria and court stays (Ex. FED-340, Ex. SEC-14-009, Ex. FED-346, Ex. SEC-14-017, Ex. SEC-14-024, Ex. SEC-14-072, Ex. SEC-14-086, Ex. SEC-14-073, Ex. KS-011, Ex. SEC-14-069, Ex. SEC-14-037, Ex. SEC-14-076, Ex. SEC-14-046, Ex. SEC-14-047, Ex. OR-006, Ex. SEC-14-063, Ex. SEC-14-042, Ex. SEC-14-056, Ex. SEC-14-052, Ex. SEC-14-061, Ex. SEC-14-021, Ex. SEC-14-033, Ex. CO-009, Ex. CO-029, Ex. NE-046, Ex. IA-004, Ex. WI-033, Ex. NV-010, Ex. MT-011, Ex. MD-038, Ex. AL-014, Ex. MS-009, Ex. MS-014, Ex. MS-018, Ex. ME-019, Ex. FL-019, Ex. IN-078, Ex. UT-006, Ex. TX-057, Ex. TX-058, Ex. SC-046, Ex. NM-009, Ex. VA-039, Ex. ND-086, Ex. AGY-ST-COURTS-068) and the appraisal instruments (Ex. SEC-14-012, Ex. SEC-14-010, Ex. SEC-14-007), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting or confining every showing and open house, by closing the recorder's counter and the notary's desk through which every closing passes, by taking from every property manager the eviction remedy, by confining every appraiser to the exterior, and by confining at home the customers with whom the industry transacts.¹¹⁸

The third quarter of 2020

On July 1, 2020, CARES Act § 4024 ran to July 24; the FHA and FHFA moratoria ran to August 31 and were extended to December 31; State moratoria were in force in New Jersey, New York, California, Illinois, Washington, Minnesota, Oregon, Connecticut, Massachusetts, Pennsylvania, Florida, Nevada, Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Kentucky, Michigan (to July 15), Arizona, Colorado, Maine, Vermont and North Dakota; and every reopening plan conditioned showings on appointment, party caps, face coverings and sanitation, the workplace infection-prevention and exposure-control requirements of reopening.¹¹⁹ Within the quarter the Supreme Court of Virginia suspended eviction proceedings again from August 10 to September 7; Pennsylvania extended its dispossession stay to August 31; Kansas re-imposed its moratorium on August 17; Kentucky's suspension ended August 24, when Executive Order 2020-700 substituted a thirty-day notice and meet-and-confer requirement; California enacted AB 3088 on August 31; Florida extended its order to October 1; Oregon's HB 4213 ran its emergency period to September 30; New York's traveler quarantine took effect June 25 and Hawaii's continued; the Blueprint for a Safer Economy governed every California office and leasing center from August 31; and on September 4, 2020 the CDC's order addressed every landlord and property manager in the country with criminal penalties, implemented within days by Bexar County's Amended Executive Order NW-14, the Philadelphia Trial Division's Order 56 of 2020 and the Twentieth Judicial District's Administrative Order 20-111.¹²⁰ On September 30, 2020, the CDC order was in force; the FHA and FHFA moratoria ran to December 31; the moratoria of New York, New Jersey, California, Illinois, Washington, Minnesota, Oregon, Connecticut, Massachusetts (to October 17), Florida (to October 1), Nevada (to October 14), Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Arizona (to October 31), Kansas, Colorado, Maine, Vermont and North Dakota were in force; the county judges of Harris and Bexar Counties had cancelled or postponed every foreclosure sale of the quarter; the statewide and county face-covering orders governed every showing as an exposure-control condition of the reopening plans; and the appraisal flexibilities had been extended through the quarter.¹²¹

SH and LS: appointment-only, party-cap and face-covering conditions, the workplace infection-prevention and exposure-control requirements of every reopening plan (Washington's two, then five, persons; New York's Real Estate Guidelines; Pennsylvania's three persons until Green; Los Angeles County's no-open-house rule; Nevada's Phase 2 caps); open houses barred by gathering caps in the metros that kept them.¹²² CL: recorders by appointment or e-recording only; remote notarization the compelled format in the States that authorized it and in-person closings under mask and distancing orders elsewhere; Pennsylvania's and Michigan's face-covering orders, the exposure-control requirement under which every closing room operated.¹²³ PM: the CDC order from September 4, the CARES Act bar to July 24, the FHA and FHFA moratoria, more than twenty State moratoria, the Virginia suspension of August 10 to September 7, the Pittsburgh filing bar of August 7 to 31, the Harris and Bexar foreclosure-sale cancellations; amenities reopened only under the fitness and pool capacity orders.¹²⁴ LE and OP: offices at twenty-five to fifty percent under the reopening orders (Massachusetts, Connecticut, Kentucky, New York, Pennsylvania) and under the Blueprint in California.¹²⁵ AP: exterior-only and desktop appraisals extended; interior inspections under the face-covering and sanitation conditions of the reopening plans, the exposure-control requirements of every entry, and under traveler quarantines.¹²⁶ CM: tenants' operations capped or re-closed (bars, gyms, indoor dining in California, Texas, Florida, Arizona, Pennsylvania in July).¹²⁷ WF and CB: the revised FFCRA rule of September 16; the interstate quarantines of New York, Hawaii, Massachusetts, Vermont, Maine and Rhode Island; the school year that opened remote in most large districts.¹²⁸

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the reopening orders' conditions on showings and offices (Ex. WA-109, Ex. NY-120, Ex. NY-131, Ex. SEC-14-020, Ex. PA-016, Ex. MET-LA-007, Ex. MET-LA-009, Ex. NV-017, Ex. NV-024, Ex. CA-017), the CDC eviction order (Ex. SEC-14-001) and the federal and State moratoria (Ex. FED-340, Ex. SEC-14-009, Ex. SEC-14-017, Ex. SEC-14-044, Ex. SEC-14-046, Ex. SEC-14-049, Ex. SEC-14-056, Ex. SEC-14-086, Ex. SEC-14-069, Ex. SEC-14-064, Ex. SEC-14-042, Ex. SEC-14-052, Ex. SEC-14-021, Ex. SEC-14-059, Ex. SEC-14-025, Ex. SEC-14-037, Ex. SEC-14-073, Ex. KS-034, Ex. SEC-14-076, Ex. SEC-14-061, Ex. CO-029, Ex. ME-019, Ex. ME-033, Ex. KY-027, Ex. NV-020, Ex. NV-026, Ex. MD-038, Ex. NM-009, Ex. ND-086, Ex. VA-040), the court and county orders (Ex. MET-SAT-045, Ex. MET-PHL-053, Ex. MET-DEN-072, Ex. MET-PIT-022, Ex. MET-HOU-022, Ex. MET-HOU-024, Ex. MET-HOU-025, Ex. MET-SAT-033, Ex. MET-SAT-039), the notarial instruments (Ex. SEC-14-055, Ex. SEC-14-041, Ex. SEC-14-040, Ex. SEC-14-035, Ex. SEC-14-031, Ex. SEC-14-026, Ex. SEC-14-019, Ex. SEC-14-062, Ex. SEC-14-053, Ex. SEC-14-034), the appraisal instruments (Ex. SEC-14-012, Ex. SEC-14-010, Ex. SEC-14-007) and the traveler quarantines (Ex. ECO-C-001, Ex. HI-003), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every showing on appointment, party caps and face coverings, the workplace infection-prevention and exposure-control requirements of the reopening plans, by barring every open house where gatherings were capped, by conditioning every closing on the notarial and recording rules of the emergency, by barring the eviction remedy nationwide from September 4 and in more than twenty jurisdictions throughout, and by confining or quarantining the industry's customers.¹²⁹

The fourth quarter of 2020

On October 1, 2020, the CDC order ran to December 31; the FHA and FHFA moratoria ran to December 31; State moratoria were in force in New York, New Jersey, California, Illinois, Washington, Minnesota, Oregon, Connecticut, Massachusetts (to October 17), Nevada (to October 14), Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Arizona (to October 31), Kansas, Colorado, Maine, Vermont and North Dakota, joined on October 30 by North Carolina's Executive Order 171 and on December 15 by Nevada's Directive 036; the Blueprint, the Real Estate Guidelines and the Phase orders conditioned every showing and office; and the appraisal flexibilities were in force.¹³⁰ From November the winter re-tightening re-closed or re-capped the settings in which this industry operates in eighteen jurisdictions and eight metros: California's Regional Stay at Home Order closed offices and confined residents from December 5; Washington's Proclamation 20-25.8 re-capped offices at twenty-five percent and stated that "open houses" were "prohibited" from November 17; Pennsylvania's order of November 23 required that "[u]nless impossible, all businesses must conduct their operations remotely"; Illinois' Tier 3, Minnesota's Executive Order 20-99, Michigan's MDHHS orders, New Mexico's orders of November 13 and 18, Colorado's Dial, Massachusetts' Order 59, Kentucky's Executive Order 2020-968, Nevada's Pause, Oregon's Executive Order 20-66, Rhode Island's and the District's Pauses, North Carolina's Executive Order 181, Ohio's Retail and Business Compliance order of November 16 and curfew of November 19, Iowa's proclamation of November 10 and Louisiana's Proclamation 168 re-capped gatherings, offices and retail; and St. Louis County, Shelby County, Denver, Philadelphia, Los Angeles County, Cook County, Milwaukee and Dane County re-imposed their own closures.¹³¹ On December 31, 2020, Congress had extended the CDC order to January 31, 2021; New York had enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act on December 28, staying every pending proceeding sixty days and barring eviction on a hardship declaration until at least May 1, 2021; Oregon's HB 4401 of December 23 ran to June 30, 2021; Washington's Proclamation 20-19.5 ran to March 31, 2021; Nevada's Directive 036 of December 14 re-imposed its residential moratorium; Colorado's Executive Order D 2020 307 of December 31 continued its tenant protections; the moratoria of New Jersey, California, Illinois, Minnesota, Connecticut, Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Kansas, North Carolina, Maine, Vermont and North Dakota were in force; the entry proclamations had been extended to March 31, 2021; Fannie Mae's appraisal flexibilities had been updated on December 10 and carried into 2021; the interagency deferral rule expired that day; and the winter orders were in force in every re-tightening jurisdiction.¹³²

SH and LS: showings under appointment, party-cap and face-covering conditions through October, then under the winter orders that re-closed offices and re-capped gatherings, barred open houses in Washington and confined residents in California, St. Louis County, Shelby County and Los Angeles County.¹³³ CL: recorders by appointment or e-recording; remote notarization continuing in the emergency States (Michigan's by executive order to November and then by statute); Cook County's courts and the Supreme Court of Delaware back in reduced phases from November 16 and 23.¹³⁴ PM: the CDC order every day of the quarter and by statute from December 27; the FHA and FHFA moratoria; the State moratoria named above; New York's, Oregon's, North Carolina's, Colorado's and Nevada's new instruments; the Harris County sales of November 3 and December 1 cancelled; Bexar County's NW-19 capping occupancy at fifty percent from December 28.¹³⁵ LE and OP: offices at ten percent (Colorado), twenty-five percent (Massachusetts from December 26, Washington from November 17, Nevada from November 24) or zero (California from December 5, Pennsylvania's "unless impossible" from November 27, Michigan's MDHHS orders) and the remote-work rules of the State occupational-safety agencies (Michigan from October 14, Virginia from July 27, California from November 30).¹³⁶ AP: flexibilities extended; interior inspections barred where residents were confined.¹³⁷ CM: indoor dining, fitness, entertainment and personal-care tenants re-closed in the re-tightening jurisdictions.¹³⁸ WF and CB: the FFCRA mandate to December 31; the winter stay-at-home and gathering orders; the school closures of the winter.¹³⁹

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the CDC eviction order and its statutory extension (Ex. SEC-14-001, Ex. FED-173), the federal and State moratoria (Ex. SEC-14-009, Ex. SEC-14-017, Ex. SEC-14-044, Ex. SEC-14-043, Ex. SEC-14-049, Ex. SEC-14-056, Ex. SEC-14-086, Ex. SEC-14-069, Ex. SEC-14-064, Ex. SEC-14-065, Ex. SEC-14-052, Ex. SEC-14-042, Ex. SEC-14-061, Ex. SEC-14-076, Ex. NM-009, Ex. MD-038, Ex. KS-034, Ex. CO-029, Ex. CO-071, Ex. NC-020, Ex. NC-037, Ex. ME-033, Ex. NV-026, Ex. NV-031, Ex. ND-086), the winter re-tightening orders (Ex. CA-020, Ex. WA-047, Ex. PA-022, Ex. IL-031, Ex. MN-032, Ex. MI-059, Ex. MI-060, Ex. MI-062, Ex. NM-039, Ex. NM-040, Ex. CO-081, Ex. MA-040, Ex. KY-033, Ex. NV-030, Ex. OR-035, Ex. RI-029, Ex. RI-032, Ex. DC-015, Ex. NC-023, Ex. OH-037, Ex. OH-039, Ex. IA-029, Ex. LA-023, Ex. MET-STL-074, Ex. MET-BNA-071, Ex. MET-DEN-027, Ex. MET-PHL-010, Ex. MET-LA-012, Ex. MET-CHI-034, Ex. MET-MKE-034), the court and county orders (Ex. AGY-ST-COURTS-033, Ex. AGY-ST-COURTS-054, Ex. MET-PHL-053, Ex. MET-HOU-026, Ex. MET-HOU-027, Ex. MET-SAT-055, Ex. MET-DEN-072), the notarial instruments and the appraisal instruments (Ex. SEC-14-012, Ex. SEC-14-007), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by re-closing or re-capping the offices, leasing centers and rooms in which the industry's work occurs, by barring or capping the gathering that an open house is, by keeping the eviction remedy barred by federal order and by the orders of the States named above, and by conditioning every closing and appraisal on the emergency's rules.¹⁴⁰

The first quarter of 2021

On January 1, 2021, the CDC order was in force by Act of Congress to January 31; the FHA and FHFA moratoria had been extended into 2021; the winter orders were in force in every re-tightening jurisdiction (California's regions to January 25, Washington's Roadmap from January 11 with every region in Phase 1, Pennsylvania's telework order, Massachusetts' twenty-five percent cap to February 8, Michigan's MDHHS orders to January 31, Minnesota's Executive Order 21-01, Illinois' Tier 3 re-issued to January 9, Colorado's Dial, Ohio's curfew to February 11 and its Retail and Business Compliance order, St. Louis County's Safer At Home, Shelby County's Safer at Home to January 22, Los Angeles County's targeted order to January 25, Bexar County's NW-19, Milwaukee's Orders 4.3 and 4.4, Mecklenburg's directives from January 12); and the moratoria of New York, New Jersey, California, Illinois, Washington, Minnesota, Oregon, Nevada, Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Connecticut, Colorado, Kansas, North Carolina, Maine, Vermont and North Dakota (to April 1) were in force.¹⁴¹ Within the quarter the federal general layer took effect: face coverings, distancing and a twenty-five percent occupancy cap in every federal building from January 24; the conveyance face-covering order and TSA directives from February 1; the entry proclamation of January 25; the inbound-testing order of January 26; the CDC's extension of its eviction order to March 31 (January 29) and then to June 30 (March 29); California's SB 91 (January 29) to June 30; Washington's Proclamation 20-19.6 (March 18) to June 30; FHA's appraisal flexibilities extended to June 30 (February 23); and the general restrictions began to lift in Texas (March 10), Wyoming (March 16), Arizona (March 25), Wisconsin (March 31) and Georgia (April 8).¹⁴² On March 31, 2021, the CDC order ran to June 30; the FHA and FHFA moratoria ran to June 30; the moratoria of New York (chapter 381 to May 1), New Jersey, California (SB 91), Illinois, Washington (20-19.6), Minnesota, Oregon (HB 4401), Nevada (to May 31), Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Connecticut (to June 30), Colorado, Kansas (Executive Order 21-02 to March 31, reissued April 1), North Carolina (Executive Order 206 to June 30), Maine and Vermont were in force; Pennsylvania's amended telework order, Washington's Roadmap, California's Blueprint tiers, Minnesota's Executive Order 21-11, Oregon's framework, New Mexico's framework, Massachusetts' forty percent cap, Michigan's MDHHS orders and the metro orders of Philadelphia, Los Angeles County, St. Louis County and Cook County conditioned every office and leasing center; the federal general layer ran every day; and the appraisal flexibilities ran to May 31 and June 30.¹⁴³

SH and LS: showings under the winter orders through their stepped expiry and under the Blueprint, Roadmap, framework and guideline conditions thereafter; open houses barred where gatherings were capped.¹⁴⁴ CL: remote notarization continuing in New York (to June 24), Illinois, Connecticut, Maryland, Massachusetts, North Carolina (to March 1 and then December 31), New Jersey, Texas, Mississippi, Georgia and Michigan (by statute); the Fayette County Clerk closed to in-person transactions until April 12, 2021; Cook County's courts by videoconference; the Eighth Judicial District Court's clerks closed to in-person filing until March 15.¹⁴⁵ PM: the CDC order every day; the FHA and FHFA moratoria; the State moratoria named above; New York's sixty-day stays and hardship declarations; the Harris County sales of January 5, February 2 and March 2 cancelled; Pittsburgh's chapter 782 from March 3.¹⁴⁶ LE and OP: the winter caps and telework mandates; the federal twenty-five percent cap and face-covering order in the federal field offices the industry's closings and customers pass through; the State workplace standards.¹⁴⁷ AP: exterior-only and desktop appraisals to May 31 and June 30; the winter confinement orders.¹⁴⁸ CM: tenants under the winter orders through their expiry.¹⁴⁹ WF and CB: the conveyance face-covering order on every commute from February 1; the entry proclamations and inbound-testing order; the school year still remote or hybrid in most large districts; the winter stay-at-home orders on customers.¹⁵⁰

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the CDC eviction order as extended by statute and by the orders of January 29 and March 29, 2021 (Ex. FED-173, Ex. SEC-14-002, Ex. SEC-14-003), the federal and State moratoria (Ex. SEC-14-009, Ex. SEC-14-043, Ex. SEC-14-017, Ex. SEC-14-050, Ex. SEC-14-056, Ex. SEC-14-087, Ex. SEC-14-069, Ex. SEC-14-065, Ex. SEC-14-076, Ex. SEC-14-042, Ex. SEC-14-061, Ex. NM-009, Ex. IL-067, Ex. MD-038, Ex. NV-031, Ex. NV-037, Ex. KS-034, Ex. CO-071, Ex. NC-020, Ex. NC-037, Ex. NC-038, Ex. ME-033, Ex. ND-086), the winter orders through their expiry (Ex. CA-020, Ex. WA-056, Ex. PA-022, Ex. PA-031, Ex. MA-040, Ex. MI-062, Ex. MI-063, Ex. OH-037, Ex. OH-039, Ex. OH-043, Ex. RI-032, Ex. MN-032, Ex. MN-037, Ex. IL-031, Ex. CO-081, Ex. MET-STL-074, Ex. MET-BNA-071, Ex. MET-LA-012, Ex. MET-LA-013, Ex. MET-LA-014, Ex. MET-SAT-055, Ex. MET-CLT-005, Ex. MET-CLT-012, Ex. MET-PHL-010, Ex. MET-PHL-013), the federal workplace, conveyance and entry orders (Ex. FED-060, Ex. FED-270, Ex. FED-020, Ex. FED-050, Ex. FED-053, Ex. FED-054, Ex. FED-055, Ex. FED-207, Ex. FED-042), the court orders (Ex. AGY-ST-COURTS-033, Ex. AGY-ST-COURTS-054, Ex. MD-088, Ex. MET-LAS-014, Ex. MET-HOU-029, Ex. MET-HOU-031, Ex. MET-HOU-032, Ex. MET-PIT-047), the notarial instruments and the appraisal instruments (Ex. SEC-14-012, Ex. SEC-14-084), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by keeping the eviction remedy barred nationwide and in the jurisdictions named above, by re-closing or re-capping the industry's offices and showings through the winter, by conditioning every commute and every federal-office visit, and by keeping appraisers out of interiors and closings out of the notary's presence.¹⁵¹

The second quarter of 2021

On April 1, 2021, the CDC order ran to June 30; the FHA and FHFA moratoria ran to June 30; the moratoria of New York (chapter 381 to May 1), New Jersey, California (SB 91), Illinois (with the Supreme Court's certification order from April 6), Washington (20-19.6), Minnesota, Oregon (HB 4401), Nevada (to May 31), Hawaii, Maryland, Delaware, the District of Columbia, New Mexico, Connecticut (to June 30), Vermont, Colorado, Kansas (Executive Order 21-13 from April 1 to June 15), North Carolina (to June 30) and Maine (to June 30) were in force; the Justices of the Peace of Bexar County governed eviction filings under their Fourth Order from April 7; Pennsylvania's telework order as amended April 4, Washington's Roadmap, California's Blueprint tiers, Minnesota's Executive Order 21-11, Oregon's framework, New Mexico's framework, Massachusetts' caps, New York's office and real estate guidelines and Michigan's MDHHS orders conditioned every office and showing; the federal twenty-five percent cap ran to June 10 and the conveyance face-covering order throughout; and the appraisal flexibilities ran to May 31 and June 30.¹⁵² Within the quarter New York extended its stays to August 31 by chapter 104 (May 4); the Fayette County Clerk resumed in-person transactions on April 12; Massachusetts ended its restrictions May 29 and the emergency June 15, extending virtual notarization by chapter 20 (June 16) to December 15; New Jersey ended its general restrictions May 28 and June 4; New York's caps ended May 19 and its Executive Order 202 series June 25; Connecticut's May 20; Illinois' June 11; California's June 15; Pennsylvania's May 31; Michigan's June 22; Minnesota's, Oregon's, Washington's and Maryland's June 30 and July 1; the CDC extended its order on June 24 through July 31 as a final period; FHA and FHFA extended their foreclosure moratoria to July 31 and their eviction moratoria to September 30 (June 24 and 25); Oregon enacted SB 278 (June 24); Washington issued Proclamation 21-09 (announced June 24, signed June 29) to bridge July 1 through September 30; California enacted AB 832 (June 28) to September 30; Minnesota enacted its phase-out (June 29); the CFPB published its Regulation X rule (June 30); Cook County adopted General Administrative Order 2021-02 (June 25); Columbus' Municipal Court adopted its CDC-extension order (June 24); Somerville barred eviction enforcement (June 17); Seattle extended its moratoria to September 30 (June 18); and OSHA's Healthcare ETS took effect June 21.¹⁵³ On June 30, 2021, the CDC order ran to July 31; the FHA and FHFA eviction moratoria ran to September 30; the moratoria of New York (to August 31), New Jersey, California (AB 832), Illinois (to October 3), Washington (21-09 from July 1), Oregon (SB 278), Minnesota (phase-out), Hawaii (to August 6), Maryland (to August 15), Delaware (to July 12), Colorado (to July 8), the District of Columbia, New Mexico, Connecticut (Executive Order 7X to June 30 and Executive Order 12D from June 30), North Carolina (to June 30), Maine (to June 30) and Vermont (to July 15) were in force; the remote-notarization instruments of Illinois, Massachusetts, North Carolina, Connecticut, Maryland, Texas, Mississippi, Georgia, New Jersey and Vermont were in force; the conveyance face-covering order, the TSA directive to September 13, the entry proclamations and the land-border notices to July 21 were in force; and the appraisal flexibilities of Fannie Mae and Freddie Mac had ended May 31 and FHA's ended that day.¹⁵⁴

SH and LS: showings under the Roadmap, Blueprint, framework and guideline conditions through their stepped expiry between April 4 and July 1, 2021, and under face-covering orders, the exposure-control condition that outlasted the capacity caps, in force to May 19 (New York), May 28 (New Jersey), June 11 (Illinois, Kentucky), June 15 (California), June 22 (Michigan) and June 30 (Oregon, Washington).¹⁵⁵ CL: remote notarization in the emergency States; New York's authorization to June 24; the Fayette County Clerk to April 12; the Eighth Judicial District Court's clerks on limited hours to June 4; Cook County by videoconference; the Delaware courts in Phase 2 to June 1.¹⁵⁶ PM: the CDC order every day and its extension; the FHA and FHFA moratoria and their extensions; the State moratoria named above and their bridges and phase-outs; the Bexar County Fourth Order; the Harris County sales of April 6 and May 4 cancelled; Philadelphia's sheriff-sale stay from April 29 and Municipal Court moratorium to June 30; Pittsburgh's sheriff-sale continuance from June 2; Seattle's, Somerville's and Los Angeles' local moratoria.¹⁵⁷ LE and OP: the capacity orders through their expiry; the federal cap to June 10 and face-covering order throughout; the workplace standards of California, Virginia, Oregon and Washington.¹⁵⁸ AP: exterior-only and desktop appraisals to May 31 and June 30.¹⁵⁹ CM: tenants under the last capacity orders and the reopening steps of May and June.¹⁶⁰ WF and CB: the conveyance face-covering order; the entry proclamations; the school year to June; the health-care-worker rules from June 21.¹⁶¹

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the CDC eviction order and its extensions (Ex. SEC-14-003, Ex. SEC-14-004), the federal moratoria and their extensions (Ex. SEC-14-009, Ex. SEC-14-011, Ex. SEC-14-013), the State moratoria, bridges and phase-outs (Ex. SEC-14-043, Ex. NY-085, Ex. SEC-14-017, Ex. SEC-14-050, Ex. SEC-14-051, Ex. SEC-14-056, Ex. IL-067, Ex. SEC-14-087, Ex. SEC-14-088, Ex. SEC-14-069, Ex. MN-042, Ex. SEC-14-065, Ex. SEC-14-066, Ex. SEC-14-076, Ex. DE-038, Ex. DE-039, Ex. SEC-14-061, Ex. SEC-14-042, Ex. CT-103, Ex. HI-023, Ex. MD-038, Ex. MD-031, Ex. NM-009, Ex. NV-037, Ex. CO-071, Ex. CO-078, Ex. KS-044, Ex. NC-038, Ex. ME-033), the capacity and telework orders through their expiry (Ex. PA-033, Ex. WA-056, Ex. WA-065, Ex. CA-055, Ex. MN-037, Ex. OR-035, Ex. NM-057, Ex. NY-131, Ex. NY-120, Ex. NY-054, Ex. MA-048, Ex. NJ-050, Ex. NJ-053, Ex. CT-046), the federal workplace, conveyance, entry and border orders (Ex. FED-060, Ex. FED-270, Ex. FED-020, Ex. FED-051, Ex. FED-207, Ex. FED-208, Ex. FED-232, Ex. FED-255, Ex. FED-080), the court and county orders (Ex. MET-SAT-061, Ex. MET-HOU-035, Ex. MET-HOU-036, Ex. MET-PHL-056, Ex. MET-PHL-057, Ex. MET-PIT-033, Ex. MET-PIT-054, Ex. MET-CMH-040, Ex. MET-BOS-064, Ex. MET-SEA-017, Ex. AGY-ST-COURTS-034, Ex. AGY-ST-COURTS-038, Ex. AGY-ST-COURTS-060, Ex. MD-089, Ex. TX-064, Ex. FL-069, Ex. MET-LAS-018, Ex. MET-SDF-036), the notarial instruments (Ex. SEC-14-055, Ex. AGY-ST-DMV-SOS-RECORDERS-040, Ex. SEC-14-041, Ex. SEC-14-040, Ex. AGY-ST-DMV-SOS-RECORDERS-044, Ex. AGY-ST-DMV-SOS-RECORDERS-113, Ex. SEC-14-019, Ex. AGY-ST-DMV-SOS-RECORDERS-050, Ex. SEC-14-035, Ex. GA-015, Ex. GA-042, Ex. TN-042, Ex. KS-049, Ex. KS-050, Ex. AGY-ST-DMV-SOS-RECORDERS-036) and the appraisal instruments (Ex. SEC-14-012, Ex. SEC-14-084), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by keeping the eviction remedy barred nationwide through June 30 and beyond, by conditioning every showing, office and leasing center through the stepped expiry of the capacity orders, by conditioning every closing on the emergency's notarial rules, by keeping appraisers out of interiors to May 31 and June 30, and by conditioning every commute and border crossing.¹⁶²

The third quarter of 2021

(A) The Service's premise and what the statute asks

The Service's letters state for this quarter that "there were no government orders related to COVID-19 in effect during the quarter" that could have suspended an employer's trade or business. The statute asks whether, during the quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business was fully or partially suspended due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. Congress re-enacted that clause on March 11, 2021 for exactly this quarter, with knowledge of the Notice and of the orders then in force, and preserved it when it terminated the fourth quarter on November 15, 2021; the Service's own Notice 2021-49 of August 4, 2021 carried the suspension rules into the quarter.¹⁶³ For this industry the premise is answered by the Federal Register alone: the CDC's eviction order was in force on July 1, 2021 and on every day through August 26, 2021, addressed to every landlord and property manager in the country with criminal penalties, and the FHA and FHFA eviction moratoria expired on September 30, 2021, the last day of the quarter. The inventory in (B) lists only instruments in force on some day of the quarter; the closing paragraph names the expired instruments on which the proof does not rest.

(B) The instruments in force July 1 through September 30, 2021

The instruments are stated one by one, each with its issuer, dates, operative clause, enforcement, status on July 1 and September 30, and the functions it reached.

B-1. The CDC eviction orders

Issuer: the Centers for Disease Control and Prevention, HHS, under 42 U.S.C. § 264 and 42 C.F.R. § 70.2. Dates: the order of June 24, 2021 (86 Fed. Reg. 34010) extended the halt through July 31, 2021, "a final 30 day-period"; the order of August 3, 2021 (86 Fed. Reg. 43244) re-imposed the halt in every county with substantial or high transmission through October 3, 2021 by its terms. Operative clause: "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." Enforcement: criminal fines of up to $100,000 and one year's imprisonment for an individual and up to $200,000 for an organization, or $250,000 and $500,000 where a death results, under 42 U.S.C. § 271 and 18 U.S.C. §§ 3559, 3571. Status: in force July 1; in force nationwide July 31; in force in the covered counties from August 3 until the Supreme Court of the United States vacated the stay of the judgment against it on August 26, 2021, after which it was of no effect. Functions: PM (rent collection and enforcement), CM (mixed-use and small-landlord portfolios), CB (every tenant and landlord). The courts of Philadelphia, Bexar County, Cook County, Franklin County and Cleveland administered the order's procedures in their own orders of June 24, June 25, August 4, August 5 and August 27, 2021.¹⁶⁴

B-2. The FHA, FHFA, VA and USDA eviction moratoria and the CFPB's Regulation X safeguards

Issuers: HUD's Federal Housing Administration (Mortgagee Letter 2021-15, June 25, 2021); the Federal Housing Finance Agency (release of June 24, 2021, and release of July 30, 2021); the Department of Veterans Affairs (Circular 26-21-14, July 30, 2021); USDA Rural Development (release of July 30, 2021); the Bureau of Consumer Financial Protection (86 Fed. Reg. 34848, June 30, 2021). Operative clauses: mortgagees "must" continue the moratorium on evictions of persons from FHA-insured single-family properties through September 30, 2021; the Enterprises' REO eviction moratorium runs through September 30, 2021; VA and USDA borrowers and occupants are protected through September 30, 2021; from August 31 through December 31, 2021 a servicer may not make the first notice or filing required for foreclosure on a covered loan until the borrower has been evaluated for loss mitigation, is unresponsive after specified outreach or has abandoned the property. Enforcement: FHA's insurance and mortgagee-review sanctions; the Enterprises' seller-servicer contracts; the CFPB's supervisory and enforcement authority under RESPA and the Dodd-Frank Act. Status: each in force July 1 (the CFPB rule published and awaiting its effective date) and in force September 30, 2021, the FHA and FHFA moratoria expiring that day. Functions: PM (management of FHA-insured, Enterprise-owned, VA and USDA properties; REO management), CL (REO and foreclosure closings), CM, CB.¹⁶⁵

B-3. The State eviction statutes, proclamations and court stays

New York: chapter 104 of 2021 (May 4, 2021) stayed residential and commercial eviction and foreclosure proceedings to August 31, 2021, and chapter 417 of 2021 (September 2, 2021) re-imposed the stays to January 15, 2022, with a two-day interval that the Governor's extraordinary session closed; enforceable by the courts' refusal to issue warrants and judgments of possession; in force July 1 and September 30; PM, CM, CB. New Jersey: Executive Order 106 (March 19, 2020), providing that "[a]ny lessee, tenant, homeowner or any other person shall not be removed from a residential property as the result of an eviction or foreclosure proceeding," as modified by Executive Order 249 (August 4, 2021) 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 at or below, with self-certification by November 15, 2021; enforceable through the Superior Court's control of warrants of removal; in force July 1 and, for lower-income households, September 30; PM, CM, CB. California: AB 832 (June 28, 2021), extending the COVID-19 Tenant Relief Act's protections for rent accrued through September 30, 2021 and requiring rental-assistance procedures before any unlawful detainer for that rent; enforceable in the unlawful-detainer courts; in force July 1 and September 30; PM, CM, CB. Illinois: Executive Order 2020-30's moratorium as re-issued in every thirty-day disaster proclamation, with filings resumed August 1, 2021 and enforcement barred to October 3, 2021, and the Supreme Court of Illinois' certification requirement of April 6, 2021 "until the Governor's moratorium" ended; in force July 1 and September 30; PM, CM, CB. Washington: Proclamation 21-09 (signed June 29, 2021, announced June 24, 2021; effective July 1, 2021), prohibiting evictions for nonpayment "from July 1, 2021, until 11:59 p.m. on September 30, 2021," and Proclamation 21-09.1 (September 24, 2021) to October 31, 2021; misdemeanor enforcement under RCW 43.06.220; in force July 1 and September 30; PM, LE, CB. Oregon: SB 278 (June 24, 2021), under which a landlord "may not" deliver a nonpayment termination notice or proceed for sixty days after the tenant documents a rental-assistance application; in force July 1 and September 30; PM, CB. Minnesota: Laws 2021, First Special Session, chapter 8, article 5 (June 29, 2021), phasing out the peacetime-emergency moratorium in steps through June 1, 2022; in force July 1 and September 30; PM, CB. New Mexico: Supreme Court Order No. 20-8500-007 (March 24, 2020), staying writs of restitution where the tenant shows inability to pay, lifted only in phases from January 4, 2022; in force July 1 and September 30; PM, CB. Maryland: the Order of March 16, 2020, Temporarily Prohibiting Evictions of Tenants Suffering Substantial Loss of Income Due to COVID-19, as amended and restated April 3, 2020 (Executive Order 20-04-03-01) and thereafter, barring judgments for possession against tenants with substantial COVID-19 income loss, continued by Order 21-06-15-01 to August 15, 2021; in force July 1, expired August 15; PM, CB. Hawaii: the eviction suspension of the supplementary proclamations, continued by the Twenty-First Proclamation to August 6, 2021; in force July 1, expired August 6; PM, CB. Vermont: Act 101 (May 14, 2020), staying ejectment and foreclosure actions until thirty days after the emergency, which ended June 15, 2021, so to July 15, 2021; in force July 1, expired July 15; PM, CB. Delaware: the eviction and foreclosure stays of the Sixth Modification as carried by the Twenty-Ninth Modification and its First Revision of June 15, 2021; in force July 1 through July 12, 2021, terminating with the State of Emergency at 12:01 a.m. July 13; PM. Colorado: Executive Order D 2021 120 (June 30, 2021), extending the tenant-protection orders D 2021 088, 105 and 110; in force July 1 through July 8, 2021, when Executive Order D 2021 122 rescinded it; PM, CB. Connecticut: Executive Order 12D (June 30, 2021), prescribing the notice, mediation and rental-assistance procedures for every summary-process action, extended with the emergency to February 15, 2022; in force July 1 and September 30; PM, CB. Nevada: AB 486's mediation stays of June 2021 and the District of Columbia's public-health-emergency moratorium, each cited by name; in force throughout; PM, CB. The territories: the Virgin Islands' eviction moratorium to July 30, extended to December 31, 2021 (Twenty-Fourth and Twenty-Eighth Supplemental Orders), and Guam's Executive Order 2020-07 for the public health emergency; in force throughout; PM.¹⁶⁶

B-4. The remote-notarization instruments

Illinois: Executive Order 2020-14 (March 26, 2020), under which the requirement to "appear before" a notary "is satisfied if the Notary Public performs a remote notarization via two-way audio-video communication," re-issued with each disaster proclamation through the quarter; CL. Massachusetts: chapter 20 of the Acts of 2021 (June 16, 2021), continuing virtual notarization by video conference to December 15, 2021; CL. North Carolina: Session Law 2021-3, continuing emergency video notarization and witnessing to December 31, 2021; CL. Connecticut: Executive Order 7Q (March 30, 2020) and its successors, permitting "any notarial act that is required under Connecticut law" to be performed with the signatory "remotely located," continued with the emergency to February 15, 2022; CL. Maryland: Executive Order 20-03-30-04 (March 30, 2020), authorizing remote notarizations "until the termination of the state of emergency," which with its grace period ran to August 15, 2021; CL. Texas: the Governor's suspensions of statutory notary-presence requirements under Texas Government Code § 418.016, announced April 8, 2020 for wills, powers of attorney, directives to physicians and oaths and April 27, 2020 for real estate instruments, including Texas Government Code § 406.016, each allowing appearance before a notary by videoconference "until terminated by the Office of the Governor," in force throughout; CL. Mississippi: Executive Order 1467 (April 6, 2020), remote notarization "for the duration of the State of Emergency and for fourteen days" after; CL. Georgia: Executive Orders 03.31.20.01 and 04.09.20.01, whose remote-attestation and remote-notarization suspensions expired with the Public Health State of Emergency on July 1, 2021 and were re-ordered the same day by Executive Order 06.30.21.02 under the Economic Recovery State of Emergency and again by Executive Order 09.20.21.02; in force July 1 and September 30; CL. New Jersey: P.L. 2020, c. 26 (April 14, 2020), in force to July 22, 2021, when P.L. 2021, c. 179 made remote notarization permanent; CL. Vermont: Act 95 of 2020, whose emergency period ended thirty days after the emergency, on July 15, 2021; CL. Each instrument changed how every closing in its State was conducted because the in-person act had been limited by order; each was in force on July 1, 2021, and Illinois', Massachusetts', North Carolina's, Connecticut's, Texas', Mississippi's and Georgia's on September 30, 2021.¹⁶⁷

B-5. The local eviction, foreclosure and court instruments

Los Angeles County's COVID-19 Tenant Protections Resolution and the Department of Consumer and Business Affairs' revised guidelines of July 1, 2021, barring residential evictions for nonpayment and no-fault reasons through September 30, 2021 and extended September 28, 2021 to January 31, 2022, with the City's Ordinance 186585 running through the local emergency; Seattle's residential and small-business eviction moratoria, extended by Executive Order 2021-06 to September 30, 2021 and by Executive Order 2021-07 (September 21, 2021) to January 15, 2022; Boston's Public Health Commission eviction moratorium of August 31, 2021, "until rescinded"; Somerville's Board of Health order barring eviction enforcement from June 17 to September 15, 2021, extended September 9, 2021 to April 30, 2022; the Philadelphia courts' stay of every sheriff's mortgage-foreclosure and tax sale to September 2021 and residential eviction moratorium to October 3, 2021 on the court's own finding of substantial or high transmission; the Allegheny County courts' continuance of sheriff sales to September 7, 2021 and temporary eviction procedures of August 6 to October 31, 2021, with Pittsburgh's chapter 782 ordinances to August 3, 2021; the Circuit Court of Cook County's General Administrative Order 2021-02 governing residential eviction proceedings until the moratorium's end on October 3, 2021; the Bexar County Justices of the Peace's Fifth Order (August 5 to October 3, 2021) and the City of San Antonio's Fourteenth Addendum to the Eighth Declaration of Public Health Emergency of August 11, 2021, carrying the eviction clause; the Franklin County Municipal Court's orders of June 24 and August 5, 2021; the Cleveland Housing Court's order of August 27, 2021 administering the CDC stays; the Harris County Local Administrative Judge's order of August 11, 2021; Dallas' Ordinance 31521 requiring a COVID notice before eviction for the duration of the Governor's declaration; and Salt Lake County's, Denver's and Las Vegas' court orders. Each was in force on some day of the quarter and most on every day; each reached PM, CM and CL (foreclosure and REO closings) directly and CB through the tenants it protected.¹⁶⁸

B-6. The Delta-wave workplace infection-prevention and exposure-control orders: universal indoor face coverings, vaccination-proof conditions and access rules

The instruments of this subpart are the occupational-health and airborne-transmission controls of the Delta quarter. Each required face coverings of every person in the indoor public settings it named, regardless of vaccination status; many placed on the business operating the setting the duty to require the covering of its employees and patrons and to admit no one without it; several added vaccination-proof or testing conditions of entry, employee attestation, or enforcement by the State's occupational-safety agency in every workplace; and where an instrument required face coverings alone, the entry says so and places it in that class. Los Angeles County: the Health Officer's order of July 16, 2021, effective 11:59 p.m. July 17, 2021, requiring face coverings in all indoor public settings regardless of vaccination status, revised August 16, 2021 and in force September 30; misdemeanor enforcement under Cal. Health & Safety Code § 120295; SH, LE, OP, CL. The Bay Area: the eight coordinated health-officer orders effective 12:01 a.m. August 3, 2021 (San Francisco's C19-07y as updated, Marin's order of August 2), requiring face coverings indoors, and San Francisco's update of August 12, 2021 requiring proof of vaccination for patrons of covered indoor businesses from August 20, 2021; in force September 30; SH, LE, OP, CL. Sacramento County: the Health Officer's order effective July 30, 2021; SH, LE, OP. Nevada: Directive 047 (July 27, 2021, effective July 30, 2021), face coverings for all persons in public indoor spaces in every county of substantial or high transmission, twelve counties from July 30 and sixteen of seventeen by August 24, Clark and Washoe throughout, with Directive 048 (August 4, 2021) defining "indoor public setting" to include offices and breakrooms and Nevada OSHA's updated guidance of July 30, 2021 enforcing the requirement in every workplace, preceded by Clark County's employee-mask measure of July 22, 2021, enforced under Clark County Code 3.04.065 by license suspension and a $1,000 daily penalty; in force September 30; SH, LE, OP, CL. Louisiana: Proclamation 137 JBE 2021 (August 2, 2021, effective August 4, 2021), statewide indoor face coverings, renewed to September 29 and beyond, with New Orleans' indoor-mask guidelines of July 31, 2021 and vaccination-or-test requirement for indoor venues from August 16, 2021; in force September 30; SH, LE, OP, CL. Oregon: OAR 333-019-1025 (PH 35-2021, filed August 11, 2021, effective August 13, 2021), face coverings in indoor spaces, and Oregon OSHA's AO 10-2021 of August 13, 2021 restoring the workplace face-covering rule, the State's occupational-health control; in force September 30; SH, LE, OP, CL, AP. New Mexico: the Public Health Emergency Order of August 17, 2021, mask directive from August 20, 2021, extended through October 15; in force September 30; SH, LE, OP, CL. Washington: the Secretary of Health's Order 20-03.4 (August 19, 2021, effective August 23, 2021) and Proclamation 20-25.15 (August 20, 2021), indoor face coverings for all persons and a prohibition on businesses admitting unmasked persons, amended September 3, 13 and 24; misdemeanor enforcement; in force September 30; SH, LE, OP, CL. Illinois: Executive Order 2021-20 (August 26, 2021), face coverings indoors from August 30, 2021, preceded by Chicago's Public Health Order 2021-1 (August 20) and Cook County's Order 2021-10 (August 23); in force September 30; SH, LE, OP, CL. Hawaii: the Emergency Proclamation of August 5, 2021 (statewide face covering; employee attestation and testing from August 16), Executive Order 21-05 of August 10, 2021 (gathering limits), Honolulu's Safe Access Oahu order effective September 13, 2021 and Emergency Order 2021-13's Exhibit B of September 17, 2021, directing that real estate be conducted "by remote/electronic means whenever possible"; in force September 30; SH, LS, LE, OP, CL. New York City: Emergency Executive Order 225, Key to NYC (August 16, 2021, effective August 17, 2021), proof of vaccination for indoor dining, fitness and entertainment, restated in every successor; in force September 30; CM (every restaurant, gym and theater tenant), CB. The District of Columbia: Mayor's Order 2021-097 (July 29, 2021, effective 5:00 a.m. July 31, 2021), indoor face coverings; in force September 30; SH, LE, OP, CL. Connecticut: the Department of Public Health's universal-masking order of August 7, 2021; in force September 30; SH, LE, OP. The other States' face-covering and access rules on businesses: Massachusetts, the Commissioner of Public Health's order of May 28, 2021 (effective May 29, reissued June 14), requiring face coverings in transit, health care and congregate settings throughout the quarter; New York, 10 NYCRR Subpart 66-3, the face-covering rule binding every employer and business, re-adopted June 23, 2021 and in force to August 27, 2021, when the Commissioner's Determination on Indoor Masking under 10 NYCRR 2.60 succeeded it; California, the State Public Health Officer's Beyond the Blueprint order of June 11, 2021, binding every business from June 15 through the quarter to the Department's face-covering requirements, which the Department's face-covering guidance of July 28, 2021 restated for indoor public settings, and to vaccination verification at mega events; Colorado, the Fourth, Fifth and Sixth Amended Public Health Orders 20-38 (July 1, August 1 and September 1, 2021), keeping face-covering and implementation duties on employers; Washington, Proclamations 20-25.16 (September 3, 2021) and 20-25.17 (September 13, 2021), protecting every business that required masks or vaccination proof from local interference and requiring face coverings at outdoor events of 500 or more; and Hawaii, Executive Order 21-07 (September 13, 2021), conditioning every contractor's and visitor's access to State property on vaccination or a negative test; each in force September 30; SH, LE, OP, CL. The metros: Boston (August 27), Baltimore (August 9 as announced, by the Health Commissioner's written order of August 10, reaching "shared areas of commercial offices"), Montgomery County, Maryland (August 7), Prince George's County (August 5), Philadelphia (August 12), Dallas County (August 11), Atlanta (July 28, Ex. MET-ATL-063; enforcement against businesses suspended from August 19, 2021 by Executive Order 08.19.21.03, Ex. GA-043), Charlotte and Mecklenburg (August 18 and 31), Raleigh (August 13), Durham (August 9), Kansas City (August 19), St. Louis City (July 26) and County (July 26, enforcement barred from August 3), Columbus (September 10), Dane County (August 19, September 10), King County (September 7), Lincoln and Lancaster County, Nebraska (August 26), Memphis (Executive Order No. 25-2021 of July 13, 2021 and its weekly successors continuing the local emergency) and Shelby County (Health Order No. 25 and the school and daycare masking directive of August 2021), Denver (vaccination of personnel of certain entities from August 2; Sixth Amended Public Health Order 20-38 from September 1), Salt Lake City (Executive Order 3 of 2021, July 28, masks in every City building and vehicle, Ex. MET-SLC-029; Emergency Order: Masks for K-12 schools, August 20, extended September 14, Ex. MET-SLC-030) and Summit County (Order 2021-01, effective August 25, Ex. MET-SLC-016), and Louisville's Metro buildings (August 2). Each reached every indoor showing, closing and leasing office within its territory as an indoor public setting and workplace, as the exposure-control regime under which the function operated, and each was in force on September 30, 2021, except as stated for Atlanta.¹⁶⁹

B-7. The State emergencies, general orders and counter-orders

Texas: the disaster declaration of March 13, 2020, renewed monthly through the period (August 29, 2021); GA-38 (July 29, 2021), barring local face-covering and vaccination mandates and requiring daily test-result reporting; SB 968 (June 16, 2021), barring vaccination-proof requirements by businesses; in force throughout. Georgia: the Economic Recovery State of Emergency of June 30, 2021 and its orders of July 1, August 19 and September 20, 2021, with sector duties. Alabama: the Governor's new state of emergency of August 13, 2021. Tennessee: Executive Order 82 (July 30, 2021). North Carolina: Executive Order 224 (July 29, 2021), extended by Executive Order 229. Arkansas: Executive Order 21-14 (July 29, 2021). Arizona: Executive Order 2021-06 to September 29, 2021. Maryland: Order 21-06-15-01, continuing the § II orders to August 15, 2021. Delaware: the Public Health Emergency of July 12, 2021, extended monthly. Indiana: Executive Orders 21-17 and 21-22. Nebraska: Executive Orders 21-09 and 21-12. West Virginia: the state of emergency of March 16, 2020 and Executive Order 13-21. Missouri: Executive Order 21-07 to August 27, 2021. Maine: Executive Order 40 FY 20/21, scheduling expirations to December 31, 2021. Massachusetts: the Governor's public-health declaration of May 28, 2021. New Mexico: the Public Health Emergency Order of June 30, 2021 and its renewals. Hawaii: the Twenty-First Proclamation to August 6 and the Emergency Proclamation of August 5, 2021. New Jersey: Executive Order 242 and P.L. 2021, c. 103. Pennsylvania: Act 21 of 2021, extending the Commonwealth's regulatory suspensions to September 30, 2021. Oregon: Executive Order 21-15 to December 31, 2021. Nevada: Directive 044's delegations. New York City, Harris County, Dallas County, St. Louis and New Orleans: local emergencies continuing through the quarter. The statutes and orders of the other States that dictated what a business could and could not require of the persons on its premises, each in force on July 1 and September 30, 2021 unless stated: Florida, chapter 2021-8 (SB 2006), creating section 381.00316 and amending section 252.38, which barred every business from requiring vaccination documentation on pain of a $5,000 fine per violation from July 1, 2021, with Executive Order 21-101 invalidating every remaining local COVID-19 emergency order from that day; Montana, House Bill 702, codified at Mont. Code Ann. § 49-2-312, prohibiting discrimination by vaccination status from May 7, 2021, and House Bills 121 and 257, placing local health orders under the governing body's control; North Dakota, House Bill 1465 (vaccination documentation), House Bill 1118 (State Health Officer orders only during a declared emergency) and House Bill 1323 (no statewide mask mandate, from August 1, 2021); Iowa, House File 847 (facial-covering policies of counties, cities and schools) and House File 889 (vaccination-proof prohibition), each from May 20, 2021, and the Governor's proclamations of July 23, August 19 and September 17, 2021 continuing the public health disaster emergency with its health-care regulatory suspensions; Utah, State Public Health Order 2020-17 as preserved by statute and Senate Bill 195 (Emergency Response Amendments, effective May 5, 2021); Oklahoma, Executive Order 2021-16 (May 28, 2021) and Senate Bill 658 (July 1, 2021); South Carolina, Act 94's Provisos 1.108 and 117.190 (July 1, 2021); Alabama, Senate Bill 267 (vaccine-passport prohibition); Tennessee, Public Chapter 550 (2021); New Hampshire, RSA 141-C:1-a (July 23, 2021); Wyoming, House Enrolled Act 93 (July 1, 2021), while the Wyoming courts' temporary orders remained in force until terminated effective February 1, 2023; Kentucky, House Joint Resolution 1 of the 2021 Special Session (September 7, 2021), extending the emergency executive actions to January 15, 2022; Illinois, Executive Order 2021-23 (September 17, 2021), re-issuing every COVID-19 executive order, the eviction moratorium and the notarial order among them; Missouri, Executive Order 21-09 (August 27, 2021), terminating the general emergency and declaring a new one to December 31, 2021; Idaho, Executive Order 2021-11 (August 31, 2021), activating the National Guard; Alaska, the Department of Health and Social Services' public health emergency order of April 30, 2021 and its Addendum No. 1 of September 21, 2021 (crisis standards of care); Mississippi, the State of Emergency of March 14, 2020, extended September 10, 2021, and the City of Jackson's executive orders; Rhode Island, the Department of Health's Safe Activities regulation to August 31, 2021 and the emergency declaration Executive Order 20-02 as renewed through the quarter, which Executive Order 21-99 (signed September 30, 2021, effective October 1, 2021) extended from the quarter's end and which is cited only as evidence that the declaration ran through September 30; Vermont, Executive Order 06-21 (June 15, 2021), the post-emergency recovery order; Connecticut, the renewed public health and civil preparedness emergencies of July 13, 2021 (to September 30) and Executive Order 14A (September 30, 2021, to February 15, 2022); New Jersey, Executive Order 192's worksite protocols as modified by Executive Orders 242 and 243; New York, Executive Order 4 (September 27, 2021), declaring a statewide disaster emergency for health-care staffing; and Pennsylvania, Act 73 of 2021 (September 30, 2021), extending the regulatory suspensions the General Assembly found "in effect on September 30, 2021" to March 31, 2022. Each is relied on for the limitation it imposed, not for the declaration alone; GA-38 and SB 968, and the vaccination-proof and face-covering statutes of Florida, Montana, North Dakota, Iowa, Oklahoma, South Carolina, Alabama, Tennessee, New Hampshire and Wyoming, are relied on as orders limiting the commerce of every brokerage and landlord in those States in terms, because they dictated what a business could and could not require of the persons on its premises.¹⁷⁰

B-8. The court orders

The Supreme Court of Texas' Fortieth Emergency Order (July 19, 2021, effective August 1 to October 1, 2021), continuing remote proceedings and eviction-diversion procedures; the Supreme Court of Virginia's Twenty-Sixth (August 4), Twenty-Seventh (August 25) and Twenty-Eighth (September 20, 2021) Orders extending the judicial emergency; the Supreme Court of South Carolina's orders of June 15, July 30 and August 27, 2021 on the operation of the trial courts; the Court of Appeals of Maryland's Third Amended Administrative Order (August 6, 2021, effective August 9), Ninth Administrative Order on health measures (August 6) and vaccination order (August 20, 2021); the Supreme Court of Kentucky's Administrative Orders 2021-27 and 2021-28 (August 9, 2021), under which eviction matters proceeded under the CDC and State procedures; the Supreme Court of Florida's AOSC21-17 as amended July 29, 2021; the Michigan Supreme Court's Administrative Order 2020-17 as amended July 2, 2021 and rescinded July 26; the Supreme Court of Delaware's masking-and-testing order of August 11, 2021 (universal face coverings in every court facility effective August 16; weekly testing of unvaccinated court employees from September 7); the Supreme Judicial Court of Massachusetts' Seventh Updated Order (effective July 12, 2021); the Alaska, Arizona, Idaho, Iowa, Kansas, Minnesota, Montana, Rhode Island, South Dakota, Utah, Wisconsin, Wyoming and Hawaii courts' orders of the period; the Circuit Court of Cook County's General Administrative Orders 2020-07 (as amended) 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; the Harris County Local Administrative Judge's order of August 11, 2021; the Eighth Judicial District Court's Administrative Orders 21-04 and 21-05; the Superior Court in Maricopa County's Administrative Order 2021-119 (August 4, 2021, effective August 9); the Fairfax and Alexandria Circuit Courts' face-covering orders (August 2 and 4, 2021); and the District of Arizona's General Order 21-15 (September 2, 2021, effective September 7). Each governed the forum in which this industry's evictions, foreclosures, quiet-title actions and closings-in-dispute are heard, and each was in force on September 30, 2021 unless stated.¹⁷¹

B-9. The federal general layer

The CDC conveyance order, the federal airborne-transmission control requiring face coverings on every conveyance and at every transportation hub (in force every day; the TSA's directive SD 1582/84-21-01A to September 13 and SD 1582/84-21-01B from September 14, 2021 to January 18, 2022), governing every commute of the industry's staff and customers by transit, rail and air; the Safer Federal Workforce Task Force's Agency Model Safety Principles of July 29, 2021, reinstating face coverings in federal buildings and requiring every onsite contractor to attest to vaccination or submit to testing, face coverings and distancing, the occupational-health controls of the federal workplace, reaching the industry's dealings with HUD, FHA, VA and IRS field offices and every manager of federally leased space; Executive Order 14042 (September 9, 2021), directing the vaccination clause into federal contracts; Executive Order 13991 (in force throughout); the entry proclamations 9984, 10143 and 10199 (revoked effective November 8, 2021) and the land-border notices of July 22, August 23 and September 22, 2021 (Canada and Mexico), closing non-essential cross-border movement of buyers, investors and staff through October 21, 2021; the CDC's inbound-testing order; the CDC's Title 42 order as reissued August 2, 2021; OSHA's Healthcare ETS, governing the medical tenants of every medical office building; and the DHS Form I-9 deferral for remote hires. Each was in force on July 1 and September 30, 2021, except as stated.¹⁷²

B-10. The workforce, school and counterparty orders

The isolation and quarantine orders of the State and county health officers, which removed every positive employee and every unvaccinated close contact from the industry's offices for ten to fourteen days throughout the quarter (San Diego County's orders of December 24, 2020 and July 22, 2021; King County's directive of March 28, 2020; New Hampshire's guides; Ohio's K-12 quarantine guidance of August 31, 2021); the school face-covering and quarantine orders of August and September 2021 in Illinois, Louisiana, Washington, Oregon, New Mexico, Hawaii, Kentucky (702 KAR 1:195E), Pennsylvania (September 7) and the metros, which governed the households of the industry's staff; the health-care-worker vaccination orders of California (July 26 and August 5, 2021), New York (August 26, 2021), Washington (August 9, 2021), Denver (August 2, 2021) and the territories, which conditioned the medical tenants of the industry's office buildings; Puerto Rico's and Guam's vaccination and testing orders for public agencies, contractors and establishments (July 28 through September 20, 2021); the Virgin Islands' gathering and beach orders; the HERO Act plans that every New York private employer, including every brokerage and management company, was required to adopt by August 5, 2021 and to activate from September 6, 2021; and the other States' workforce, school and health-care mandates of the quarter: Florida's Executive Order 21-175 (July 30, 2021) on school masking; Utah's Senate Bill 107 (Test to Stay) for the 2021-22 school year; South Carolina's Act 102 (in-person instruction); Kansas' travel and exposure quarantine mandate and the KDHE order requiring COVID-19 testing in adult care homes (June 18, 2021); Minnesota Management and Budget's Policy 1446 (proof of vaccination and testing for State employees, from September 8, 2021); Indiana's COVID-19 Control Measures under 410 IAC 1 (updated July 19, 2021, given executive-order force August 1), isolating cases and quarantining contacts; Michigan's 2020 PA 238, the COVID-19 Employment Rights Act, barring every employer from permitting a symptomatic or exposed employee to report to work; Rhode Island's emergency regulation of August 17, 2021 requiring vaccination of every worker in licensed health-care facilities; Massachusetts' Public Health Emergency Order No. 2021-4 (nursing-home personnel, August 4), Executive Order 595 (Executive Department employees, August 19), 105 CMR 159.000 (home-care staff, September 8), 101 CMR 23.00 (staff at agency facilities, August 13) and the Department of Elementary and Secondary Education's mask requirement (August 25, 2021); New Jersey's Executive Orders 251 (school masks, August 9) and 252 (vaccination or testing for covered health-care and congregate-setting workers, from September 7, 2021); Pennsylvania's school face-covering order (September 7, 2021); California's K-12 guidance of July 12, 2021 (universal indoor masking; modified quarantine); Colorado's Board of Health emergency rule of August 30, 2021 (vaccination of health-care-facility staff); Oregon's Executive Order 21-29 (August 13, 2021) (State-employee vaccination); and Washington's Proclamation 21-14.1 (August 20, 2021), adding educational settings to the vaccination requirement. Each was in force on some day of the quarter, and each conditioned the households, the tenants or the counterparties of employers in this industry.¹⁷³

(C) How they reached the functions

SH and LS: every indoor showing in Los Angeles County, the Bay Area, Sacramento, Clark and Washoe Counties, Louisiana, Oregon, New Mexico, Washington, Illinois, Hawaii, the District of Columbia, Connecticut and the metros of B-6 was conducted under the face-covering and exposure-control orders of B-6 from the dates stated, and Honolulu's order directed that real estate be conducted remotely wherever possible; every open house in those jurisdictions was an indoor gathering subject to the same orders, and in Hawaii to Executive Order 21-05's limits. CL: every closing in Illinois, Massachusetts, North Carolina, Connecticut, Texas, Mississippi and Georgia was conducted under a notarial rule the emergency had rewritten, and in Maryland, New Jersey and Vermont for part of the quarter; every foreclosure and REO closing on an FHA-insured or Enterprise-owned property was barred by the moratoria to September 30; every closing room in a B-6 jurisdiction operated under its exposure-control order; every recorded instrument in a court-controlled matter passed through a courthouse under the orders of B-8. PM: no covered person could be evicted from any residential property in the United States from July 1 through July 31, or in any substantial- or high-transmission county from August 3 through August 26; no occupant of an FHA-insured, Enterprise-owned, VA or USDA property could be evicted through September 30; no tenant in New York, New Jersey, California, Illinois, Washington, Oregon, Minnesota, New Mexico, Connecticut, the District, Nevada, the Virgin Islands or Guam, or in Los Angeles, Seattle, Boston, Somerville, Philadelphia, Pittsburgh, Cook County, Bexar County or Franklin County, could be evicted except as the State or local instrument allowed; no servicer could take the first foreclosure step from August 31 without the Regulation X evaluation; the amenities and common areas of every building in a B-6 jurisdiction operated under its exposure-control order; and every leasing office did the same. LE and OP: the face-covering and exposure-control orders of B-6 and the federal workplace and contractor orders of B-9; the HERO Act plans in New York. AP: appraisers and inspectors under the exposure-control orders of every B-6 jurisdiction and under Oregon OSHA's occupational-health rule. CM: every restaurant, fitness, entertainment and personal-care tenant in New York City, San Francisco and New Orleans under a vaccination-proof order, every commercial tenant in a B-6 jurisdiction under its exposure-control order, and every medical tenant under the health-care-worker orders; commercial evictions stayed in New York and Seattle. HR: licensing and continuing-education programs under the State emergencies and face-covering orders. WF: every commute under the conveyance order; every exposed employee under a quarantine order; every parent under the school orders. CB: every buyer, tenant and landlord in a B-6 jurisdiction; every foreign buyer barred by the entry and border orders; every tenant protected by B-1 through B-5.¹⁷⁴

(D) The continuing suspension

The instruments of (B) are orders in force during the quarter, and the finding in (F) rests on them. The clause also asks whether the operation was "suspended during the calendar quarter," not whether an order was issued or expired in it, and the suspension the earlier orders caused continued, because of them, into and through the quarter by four pathways. First, the orders' own restoration steps: the showing function was ordered to zero in March 2020, permitted by appointment with two to four persons in May 2020, permitted to hold open houses only under gathering caps of ten to fifty from June 2020, re-capped in the winter of 2020-21, and released from the last percentage caps and gathering limits between May 19 and July 1, 2021; a brokerage whose open houses were unlawful in the spring of 2020 and lawful for the next twelve months only under gathering caps, party limits and the face-covering and exposure-control conditions of the reopening orders, and whose spring 2020 and spring 2021 selling seasons ran under those orders, had been ordered for fifteen months to forgo or confine the showings and open houses from which a listing pipeline, a buyer pool and an agent roster are built, and no order permitted it to rebuild them at a pace it controlled. Second, the eviction arithmetic: a property manager barred from filing or executing an eviction from March 2020 (in the moratorium States), from September 4, 2020 (everywhere, by the CDC order) and through July 31 or August 26, 2021 (by the CDC order) and September 30, 2021 (by the FHA and FHFA moratoria) carried into the quarter a docket of arrears cases built over sixteen months, which the courts of Cook County, Philadelphia, Bexar County, Franklin County and Cleveland then processed under the procedures of B-5, and which New York's chapter 417, Washington's 21-09.1, Illinois' October 3 date, New Jersey's December 31 date and Los Angeles' and Seattle's January 2022 dates stayed again; the remedy was not restored on any day of the quarter in those jurisdictions, and where it was restored the docket the orders had created was the quarter's work. Third, the appraisal and closing pipeline: every appraisal completed exterior-only or desktop between March 23, 2020 and May 31 or June 30, 2021 under the federal flexibilities was an appraisal the order had reshaped, and the interior-inspection backlog, the recorders' e-recording queues and the closings conducted under emergency notarial rules ran into the quarter. Fourth, the orders still in force: B-1 through B-10 are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and the interconnected-economy section below states the textual point and Tri-State's definition on which the continuing suspension rests. For this industry the orders themselves ran past June 30 in every jurisdiction named in (B), and that section states the restoration arithmetic from their step dates.¹⁷⁵

(E) The Service's grounds for the quarter, answered

That no orders were in effect: (B) lists them, with issuers, dates, operative clauses and enforcement, and the CDC order alone was in force on July 1 and through August 26, 2021, addressed to every landlord in the country. That the orders had lifted before the quarter began: the CDC order of June 24, 2021 took effect July 1, 2021; the FHA and FHFA moratoria ran to September 30, 2021; New York's chapter 417 and Washington's 21-09.1 were issued inside the quarter; the face-covering and exposure-control orders of B-6 were issued between July 16 and September 17, 2021. That the instruments are guidance: each instrument in (B) is an order, proclamation, statute, rule or court order with a stated enforcement mechanism, and the Notice's own Q&A-10 counts orders "without regard to the level of enforcement." That the orders reached customers, not the business: the CDC order, the FHA and FHFA moratoria and every State moratorium were addressed to the landlord and property manager by name; the face-covering and exposure-control orders of B-6 were addressed to every business operating an indoor public setting; the notarial instruments changed the act the title agent performs. That the employer was essential: no instrument in (B) turns on an essential designation. That the modifications were nominal: an order that bars the eviction remedy for a quarter, or requires every showing and closing to be conducted under a workplace infection-prevention and exposure-control order, or requires real estate to be conducted "by remote/electronic means whenever possible," is a modification of the function itself, and Q&A-18's own list names "requiring employees and customers to wear face coverings" among the compelled modifications. That the employer could telework: a showing, an open house, an appraisal, a leasing tour and a notarial acknowledgment are not performed by telework, and the orders of (B) reached the physical acts. That the ten percent figure was not met: the figure is the United States' safe harbor, not a requirement, and the eviction remedy, the showing function and the closing function are each more than ten percent of the operation of the employers that perform them as a matter of the orders' own terms. The answers section below answers each ground in full.¹⁷⁶

(F) The finding

During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the CDC eviction orders of June 24 and August 3, 2021 (Ex. SEC-14-004, Ex. SEC-14-005, Ex. SEC-14-006), the FHA, FHFA, VA and USDA eviction moratoria and the CFPB's Regulation X safeguards (Ex. SEC-14-011, Ex. FED-364, Ex. SEC-14-013, Ex. FED-355, Ex. FED-379, Ex. FED-385, Ex. FED-344), the eviction statutes, proclamations, procedures and court stays of New York, New Jersey, California, Illinois, Washington, Oregon, Minnesota, New Mexico, Maryland, Hawaii, Vermont, Connecticut, Nevada and the District of Columbia (the last two cited by name), of Delaware (July 1 through July 12) and Colorado (July 1 through July 8), and of the territories (Ex. NY-085, Ex. SEC-14-045, Ex. SEC-14-017, Ex. SEC-14-018, Ex. NJ-089, Ex. SEC-14-051, Ex. SEC-14-056, Ex. IL-067, Ex. IL-044, Ex. SEC-14-088, Ex. SEC-14-089, Ex. SEC-14-066, Ex. MN-042, Ex. NM-009, Ex. MD-038, Ex. MD-031, Ex. HI-023, Ex. SEC-14-061, Ex. CT-103, Ex. SEC-14-076, Ex. DE-038, Ex. DE-039, Ex. DE-040, Ex. CO-078, Ex. AGY-TERRITORIES-062, Ex. AGY-TERRITORIES-066, Ex. AGY-TERRITORIES-083), the remote-notarization instruments (Ex. SEC-14-055, Ex. AGY-ST-DMV-SOS-RECORDERS-040, Ex. SEC-14-041, Ex. SEC-14-040, Ex. AGY-ST-DMV-SOS-RECORDERS-044, Ex. SEC-14-070, Ex. AGY-ST-DMV-SOS-RECORDERS-113, Ex. GA-042, Ex. GA-061, Ex. SEC-14-019, Ex. AGY-ST-DMV-SOS-RECORDERS-050), the local eviction and court instruments (Ex. MET-LA-026, Ex. MET-LA-031, Ex. MET-LA-025, Ex. MET-SEA-006, Ex. MET-SEA-007, Ex. MET-SEA-017, Ex. MET-SEA-019, Ex. MET-BOS-040, Ex. MET-BOS-064, Ex. MET-BOS-066, Ex. MET-PHL-056, Ex. MET-PHL-060, Ex. MET-PIT-033, Ex. MET-PIT-039, Ex. MET-PIT-047, Ex. MET-PIT-054, Ex. AGY-ST-COURTS-038, Ex. MET-SAT-068, Ex. MET-SAT-072, Ex. MET-CMH-040, Ex. MET-CMH-045, Ex. MET-CLE-035, Ex. MET-HOU-052, Ex. MET-DFW-034), the Delta-wave workplace infection-prevention and exposure-control orders, universal indoor face coverings, vaccination-proof conditions and access rules (Ex. MET-LA-018, Ex. MET-LA-019, Ex. MET-SFO-010, Ex. MET-SFO-071, Ex. MET-SFO-049, Ex. MET-SFO-011, Ex. MET-SAC-015, Ex. CA-029, Ex. CA-035, Ex. NV-041, Ex. NV-042, Ex. NV-060, Ex. MET-LAS-006, Ex. MET-LAS-026, Ex. LA-036, Ex. MET-MSY-027, Ex. MET-MSY-028, Ex. MET-MSY-029, Ex. MET-MSY-030, Ex. OR-048, Ex. OR-049, Ex. NM-067, Ex. WA-078, Ex. WA-080, Ex. WA-082, Ex. WA-085, Ex. IL-042, Ex. MET-CHI-026, Ex. MET-CHI-041, Ex. HI-024, Ex. HI-025, Ex. HI-027, Ex. MET-HNL-035, Ex. MET-HNL-038, Ex. MET-NYC-017, Ex. NY-133, Ex. NY-073, Ex. DC-057, Ex. CT-052, Ex. MA-050, Ex. MET-BOS-013, Ex. MET-BAL-017, Ex. MET-DCM-023, Ex. MET-PHL-019, Ex. MET-DFW-028, Ex. MET-ATL-063, Ex. MET-CLT-023, Ex. MET-CLT-001, Ex. MET-KC-002, Ex. MET-STL-021, Ex. MET-STL-069, Ex. MET-CMH-048, Ex. MET-MKE-023, Ex. MET-MKE-024, Ex. MET-SEA-002, Ex. NE-089, Ex. MET-BNA-058, Ex. MET-BNA-076, Ex. MET-BNA-077, Ex. MET-DEN-023, Ex. CO-041, Ex. CO-053, Ex. CO-091, Ex. MET-SLC-029, Ex. MET-SLC-030, Ex. MET-SLC-016, Ex. UT-051, Ex. MET-SDF-017, Ex. MET-SDF-005), the State emergencies, general orders and counter-orders (Ex. TX-001, Ex. TX-038, Ex. TX-036, Ex. TX-032, Ex. GA-041, Ex. GA-042, Ex. GA-043, Ex. GA-061, Ex. AL-052, Ex. AL-078, Ex. TN-034, Ex. TN-065, Ex. NC-031, Ex. AR-017, Ex. AZ-037, Ex. AZ-044, Ex. DE-041, Ex. IN-066, Ex. IN-069, Ex. NE-067, Ex. NE-068, Ex. WV-001, Ex. WV-064, Ex. MO-018, Ex. MO-020, Ex. ME-060, Ex. MA-049, Ex. NM-060, Ex. NJ-050, Ex. NJ-053, Ex. NJ-036, Ex. NJ-051, Ex. NY-070, Ex. PA-040, Ex. PA-043, Ex. OR-043, Ex. NV-038, Ex. FL-030, Ex. FL-059, Ex. MT-072, Ex. MT-073, Ex. ND-078, Ex. ND-080, Ex. ND-082, Ex. IA-039, Ex. IA-040, Ex. IA-041, Ex. IA-046, Ex. IA-047, Ex. UT-025, Ex. UT-041, Ex. OK-042, Ex. OK-043, Ex. SC-045, Ex. NH-068, Ex. WY-055, Ex. KY-056, Ex. IL-044, Ex. ID-030, Ex. AK-030, Ex. AK-031, Ex. MS-002, Ex. MS-054, Ex. MS-060, Ex. RI-071, Ex. VT-044, Ex. CT-048, Ex. CT-058, Ex. MET-NYC-001, Ex. MET-HOU-001, Ex. MET-DFW-001, Ex. MET-STL-020, Ex. MET-MSY-001), the court orders (Ex. TX-040, Ex. VA-041, Ex. VA-042, Ex. SC-054, Ex. SC-055, Ex. SC-056, Ex. MD-090, Ex. MD-091, Ex. MD-092, Ex. KY-058, Ex. KY-059, Ex. FL-069, Ex. FL-070, Ex. MI-079, Ex. MI-080, Ex. AGY-ST-COURTS-062, Ex. AGY-ST-COURTS-041, Ex. AGY-ST-COURTS-080, Ex. AGY-ST-COURTS-033, Ex. AGY-ST-COURTS-034, Ex. AK-059, Ex. AZ-059, Ex. ID-084, Ex. IA-056, Ex. KS-074, Ex. MN-054, Ex. MT-061, Ex. RI-085, Ex. SD-045, Ex. WI-029, Ex. WY-003, Ex. HI-068, Ex. MET-LAS-018, Ex. MET-LAS-019, Ex. MET-PHX-016, Ex. MET-DCM-044, Ex. ECO-C-136), the federal general layer (Ex. FED-020, Ex. FED-051, Ex. FED-052, Ex. FED-272, Ex. FED-063, Ex. FED-060, Ex. FED-200, Ex. FED-207, Ex. FED-208, Ex. FED-233, Ex. FED-234, Ex. FED-235, Ex. FED-256, Ex. FED-257, Ex. FED-258, Ex. FED-042, Ex. FED-038, Ex. FED-080, Ex. ECO-C-126) and the workforce and counterparty orders (Ex. MET-SAN-023, Ex. MET-SAN-024, Ex. MET-SEA-004, Ex. NH-063, Ex. NH-064, Ex. NH-066, Ex. OH-084, Ex. CA-031, Ex. CA-034, Ex. ECO-B-083, Ex. NY-071, Ex. WA-077, Ex. WA-079, Ex. NY-136, Ex. NY-127, Ex. FL-063, Ex. UT-046, Ex. SC-044, Ex. KS-052, Ex. KS-057, Ex. MN-044, Ex. IN-092, Ex. MI-057, Ex. RI-072, Ex. MA-067, Ex. MA-068, Ex. MA-069, Ex. MA-070, Ex. MA-071, Ex. NJ-055, Ex. NJ-056, Ex. PA-042, Ex. CO-055, Ex. OR-047, Ex. AGY-TERRITORIES-032, Ex. AGY-TERRITORIES-033, Ex. AGY-TERRITORIES-034, Ex. AGY-TERRITORIES-035, Ex. AGY-TERRITORIES-036, Ex. AGY-TERRITORIES-037, Ex. AGY-TERRITORIES-110, Ex. AGY-TERRITORIES-111, Ex. AGY-TERRITORIES-059, Ex. AGY-TERRITORIES-065), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by barring the eviction remedy of every landlord and property manager in the country through July 31 and August 26 and of every FHA-insured, Enterprise-owned, VA and USDA property through September 30, and of every landlord in sixteen jurisdictions and the largest metros through the quarter and beyond; by conditioning every closing in ten States on emergency notarial rules and every foreclosure step on the Regulation X evaluation; by requiring every showing, open house, closing and leasing office in the States, the District and the metropolitan areas named in subpart (B) to operate under face-covering, vaccination-proof or access orders, the exposure-control requirements of the Delta quarter, from July 17, 2021 onward; by governing every eviction, foreclosure and title docket through the courts' orders; and by conditioning every commute, every federal-office visit and every border crossing on which the industry's staff and customers depend.¹⁷⁷

What this analysis does not claim was in force

The proof for the third quarter of 2021 rests on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021, and each of which is named so that the record is visible: the Fannie Mae and Freddie Mac appraisal flexibilities (ended May 31, 2021) and FHA's Mortgagee Letters 2020-05 and 2021-06 (ended June 30, 2021) (Ex. SEC-14-012, Ex. SEC-14-010, Ex. SEC-14-084); the interagency and NCUA appraisal-deferral rules (ended December 31, 2020) (Ex. SEC-14-007, Ex. AGY-FED-FINANCIAL-017, Ex. AGY-FED-FINANCIAL-040); the CDC orders of September 4, 2020, January 29, 2021 and March 29, 2021, each superseded by the order of June 24, 2021 (Ex. SEC-14-001, Ex. SEC-14-002, Ex. SEC-14-003); CARES Act § 4024's filing bar (ended July 24, 2020) (Ex. FED-340); the Consolidated Appropriations Act's extension (ended January 31, 2021) (Ex. FED-173); Connecticut's Executive Order 7X (ended June 30, 2021, when Executive Order 12D succeeded it) (Ex. SEC-14-042); Massachusetts' chapter 65 (ended October 17, 2020) (Ex. SEC-14-052); Pennsylvania's dispossession orders (ended August 31, 2020) (Ex. SEC-14-021); Michigan's eviction moratorium (ended July 15, 2020) and its showing rules (ended June 1, 2020) (Ex. SEC-14-024, Ex. SEC-14-025, Ex. SEC-14-023, Ex. SEC-14-074); Pennsylvania's Real Estate Industry Guidance (released county by county June 5 to July 3, 2020) (Ex. SEC-14-020); Arizona's eviction orders (ended October 31, 2020) (Ex. SEC-14-037, Ex. AZ-025); Florida's orders (ended October 1, 2020) (Ex. FL-019, Ex. SEC-14-059); Oregon's Executive Orders 20-11 and 20-13 (ended June 30, 2020), HB 4213 (grace period ended March 31, 2021) and HB 4401 (ended June 30, 2021) (Ex. OR-006, Ex. SEC-14-063, Ex. SEC-14-064, Ex. SEC-14-065); Minnesota's Executive Order 20-14 (ended July 1, 2021, replaced by the phase-out statute) (Ex. SEC-14-069); New Hampshire's Emergency Order 4 (ended July 1, 2020) (Ex. SEC-14-072); Kansas' eviction orders (ended June 15, 2021) (Ex. SEC-14-073, Ex. KS-011, Ex. KS-034, Ex. KS-044) and its notarization orders (ended June 15, 2021) (Ex. KS-013, Ex. KS-049, Ex. KS-050); Kentucky's eviction suspension (ended August 24, 2020) (Ex. KY-027); Maine's eviction orders (ended June 30, 2021) (Ex. ME-019, Ex. ME-033); North Carolina's Executive Order 142 and its successors and Executive Orders 171, 184 and 206 (ended June 30, 2021) (Ex. SEC-14-033, Ex. NC-020, Ex. NC-037, Ex. NC-038); North Dakota's Administrative Order 27 (repealed effective April 1, 2021) (Ex. ND-086); Nevada's Directives 008 through 043 (ended May 31, 2021) (Ex. NV-010, Ex. NV-020, Ex. NV-026, Ex. NV-031, Ex. NV-037); Georgia's Executive Orders 03.31.20.01 and 04.09.20.01 (expired July 1, 2021; the suspension was re-ordered under the Economic Recovery emergency, Ex. GA-042, Ex. GA-061) (Ex. SEC-14-035, Ex. GA-015); Tennessee's Executive Order 26 and its successors (ended April 28, 2021) (Ex. TN-010, Ex. TN-042); Missouri's Executive Order 20-08 (ended August 28, 2020) (Ex. MO-011); New York's Executive Order 202.7 (ended June 24, 2021) and its Real Estate and Office Guidelines' caps (ended May 19, 2021) (Ex. AGY-ST-DMV-SOS-RECORDERS-036, Ex. NY-120, Ex. NY-131); California's SB 91 (ended June 30, 2021) (Ex. SEC-14-050); Washington's Proclamations 20-19 through 20-19.6 (ended June 30, 2021) and its Real Estate Requirements (ended June 30, 2021) (Ex. SEC-14-086, Ex. SEC-14-087, Ex. WA-109); the stay-at-home and closure orders of March through May 2020 and every reopening-phase capacity order of 2020 and the first half of 2021 (the fifty-State table); the winter 2020-21 re-tightening orders (the layers section); the statewide face-covering orders that ended before July 1, 2021 other than the reinstatements and continuing rules listed in B-6; the federal twenty-five percent occupancy cap (ended June 10, 2021) (Ex. FED-270); the TSA directive SD 1582/84-21-01 (ended May 11, 2021) (Ex. FED-050); and the instruments that took effect after September 30, 2021, including Proclamation 10294 (November 8, 2021) (Ex. FED-209), New Mexico's Order No. 22-8500-001 (January 4, 2022) (Ex. NM-072), Hawaii's Delta Response Proclamation (October 1, 2021) (Ex. HI-029), San Diego's Ordinance O-21293 as an operative moratorium (Ex. MET-SAN-037), Prince George's County Executive Order 22-2021 (October 4, 2021) (Ex. MET-DCM-047) and Rhode Island's Executive Order 21-99 as an operative extension (effective October 1, 2021) (Ex. RI-065, relied on only as evidence that Executive Order 20-02 ran through the quarter). Six instruments are relied on only for the days of the quarter on which they were in force, and for no other: Delaware's eviction and foreclosure stays under the Sixth Modification as carried by the Twenty-Ninth Modification (July 1 through July 12, 2021, when the State of Emergency terminated) (Ex. SEC-14-076, Ex. DE-038, Ex. DE-039, Ex. DE-040); Colorado's Executive Order D 2021 120 (July 1 through July 8, 2021) (Ex. CO-078); Vermont's Act 101 and Act 95 (July 1 through July 15, 2021) (Ex. SEC-14-061, Ex. AGY-ST-DMV-SOS-RECORDERS-050); New Jersey's P.L. 2020, c. 26 (July 1 through July 22, 2021, when P.L. 2021, c. 179 made remote notarization permanent) (Ex. SEC-14-019); the DHS land-border notices of June 23, 2021 (July 1 through July 21, 2021, when the notices of July 22 succeeded them) (Ex. FED-232, Ex. FED-255); and Executive Order 14042 as issued September 9, 2021 (Ex. FED-063), whose contractor clauses took effect after the quarter.¹⁷⁸