Necessary Documentation and Privacy Considerations
LOUISIANA REALTORS • April 1, 2020
CORONAVIRUS: NECESSARY DOCUMENTATION AND PRIVACY CONSIDERATIONS[1]
By: Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
In this uncertain time, it is critical that REALTORS® consider what paperwork related to COVID-19 they should be maintaining. Federal loan programs, like the new CARES Act, and other grant programs require that certain documents be submitted in the application process to prove the loss sustained as a result of the pandemic. You might have business interruption insurance or be eligible for other new programs that are still being formulated if you can show your lost income. Not having proper documentation may mean not being able to apply for or receive certain loans, grants, or other funds. Additionally, REALTORS® may be collecting confidential documentation, such as health information in a coronavirus screening questionnaire from clients, employees, and independent contractors. REALTORS® also store personal and confidential information of clients and employees during the regular course of their business. Maintaining the confidentiality and security of this information obtained by your business is important.
1. What documentation should I be keeping as I consider applying for various reimbursement programs, loans, grants, business interruption insurance or other sources of funding?
Short Answer:
In addition to your general record-keeping practices, we suggest that you maintain documentation of any COVID-19 related expenses or losses separately from other payments and expenses, if possible.
The CARES Act created two new Small Business Administration (SBA) initiatives: the SBA 7(a) “Payroll Protection Program” and the SBA “Economic Injury Disaster Loan” (EIDL) grant program. Visit SBA's Disaster Assistance website for more detailed information on these programs. See also, the National Association of REALTORS®’ (NAR) guidance on the CARES Act
and REALTOR® Magazine article on new small business loans. As the U.S. Chamber of Commerce guidance
explains, in evaluating eligibility under the CARES Act, lenders will ask for a good faith certification that the uncertainty of current economic conditions makes the loan request necessary to support ongoing operations. It is a best practice to maintain detailed documentation of your COVID-19 related payments and expenses separately from your regular business payments and expenses, for your use in demonstrating the economic impact of COVID-19 on your business. For example, emails, copies of texts or correspondence related to closings which were canceled because of delays related to the Governor’s Stay Home Orders, documentation of canceled open houses, etc. should be retained.
Other information you may be asked to provide in applying for a loan under the CARES Act includes basic identifying information for your business, your business TIN number, your average monthly payroll, the number of jobs supported by your company and what specifically you want to use the loan money for. See Treasury.gov. You will also be asked to list all owners who hold at least a 20 percent ownership stake in the company and affirm that they are not party to federal crimes. See id. Also, you may be asked to provide the lender with documentation regarding your employee headcount over time, as well as your payroll costs. Tax returns may also be required.
2. I am requesting that all clients complete a coronavirus questionnaire before they enter a property I am showing. I am also asking my employees and independent contractors to complete a coronavirus questionnaire form and self-report if they have been exposed to coronavirus. What should I do with these completed forms?
Short Answer: You should maintain a copy of the screening forms when completed. Keep the completed forms secure and confidential such as in a locked filing cabinet or password-protected electronic file.
The information collected on the screening forms may contain medical information and should be treated as confidential. The National Association of REALTORS® guidance on general document retention may be found here. Also Louisiana REALTORS® (LR) discussed coronavirus screening questionnaires and provided sample questions in LR’s article on hold harmless agreements, here.
3. What are my obligations to generally maintain documents?
Short Answer: You must maintain certain records for 5 years pursuant to the real estate license law. Keep the documents properly indexed, and secure (physically secure, for example in locked cabinets, and/or electronically secure) to preserve client privacy and confidentiality.
LA. R. S. §1449D1 provides:
D. (1) Individual real estate brokers shall retain all of the following records, readily available and properly indexed, for a period of five years:
(a) Bank statements, copies of deposit slips, and canceled checks on all escrow or trust accounts.
(b) Copies of all documents that pertain in any way to real estate transactions wherein the individual real estate broker or licensees sponsored by the individual real estate broker have appeared in a licensing capacity.
(2) The requirement regarding copies shall not be altered by the transfer of a broker to that of an associate broker, an unlicensed person, or an inactive licensee.
E.(1) Partnerships, limited liability companies, associations, corporations, or other legal entities, foreign or domestic, and real estate brokers shall retain the following records, readily available and properly indexed, for a period of five years:
(a) Bank statements, copies of deposit slips, and canceled checks on all escrow or trust accounts.
(b) Copies of all documents that pertain in any way to real estate transactions wherein the partnership, limited liability company, association, corporation, or other legal entity, foreign or domestic, the designated qualifying broker, or licensees sponsored by same, have appeared in a licensing capacity.
(2) This requirement, regarding copies, shall not be altered by the partnership, limited liability company, association, corporation, or other legal entity, foreign or domestic, transferring the broker license to the inactive status or failure to renew such license.
All businesses, including real estate firms, should have policies and procedures in place for keeping client information secure and disposing of consumer information in a manner that preserves client privacy and confidentiality. A comprehensive data security plan will ensure that businesses collect only the consumer information needed, keep the information safe, and dispose of the information securely.
There is no one-size-fits all approach to data security and compliance, but many resources exist to assist businesses in complying with their legal responsibilities. Available resources include:
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on April 1, 2020 at 12:30 p.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
As previously noted in our 2026 legislative session update, HB 468 by Rep. Troy Hebert was adopted with no opposition and was effective August 1, 2026, as Act 807. The Act amends portions of the Louisiana Real Estate License Law (La. R.S. 37:1430, et seq.) to regulate the practice of wholesaling with respect to residential property. Specifically, the Act establishes newly defined terms of “residential real property”, “wholesaler” and “wholesaling” (La. R.S. 37:1431(35) through (37)) and enacts La. R.S. 37:1448.5 to specifically address wholesaling of residential real properties, including required disclosures, written agreements, notices and deposits and also provides for enforcement of the new law. The Act does not prohibit real estate wholesaling. Rather, there are certain requirements for “wholesalers” solely with respect to “wholesaling” of “residential real property.” Each of those terms are defined below. The intent is to make sure that sellers (homeowners) understand the true nature of the wholesaling transaction. To accomplish that, the law requires wholesalers to clearly disclose whether they intend to assign, transfer, or market any rights they have under a purchase agreement for financial gain. The wholesaler must prominently disclose that intent along with advising the seller to seek legal advice before signing each contract and that the seller has the right to cancel the wholesaling contract for any reason and without penalty for at least five calendar days after the execution of the contract. The law expressly requires that each wholesaling contract include the following: "NOTICE REQUIRED BY LOUISIANA LAW: You may cancel this contract at any time before 11:59 PM of [Insert Date]. [Insert Name of Wholesaler] CANNOT ask you to sign or have you sign any cash sale, conveyance or deed, or any other document until your right to cancel this contract has ended. See the attached notice of cancellation form for an explanation of this right. It is advisable that you find your own attorney before signing the contract. The law requires this contract to contain the entire agreement. You should not rely upon any other written or oral agreement or promise." The “notice of cancellation form” referenced above has been published by the Louisiana Real Estate Commission as the “Wholesaling Residential Real Property Mandatory Cancellation Notice” and can be found here . Failure to include that notice renders the contract void and terminable by the seller and in the event of such a termination due to failure to include the notice or other non-compliance by the wholesaler, the seller will receive the deposit. However, if the contract is terminated within the 5-day rescission period, the wholesaler receives the deposit in full. Notably, the Act requires a minimum deposit equal to at least 1% of the purchase price, with funds properly held in escrow, in all wholesaling transactions. In addition, wholesalers are also prohibited from: (a) acting or purporting to act on behalf of the seller whether pursuant to a mandate, power of attorney, or otherwise; (b) representing himself as holding any license or certification or being a member of a licensed profession without the license or certification; (c) placing any lien or other encumbrance on the property; and (d) engaging in any deceptive or unfair trade. Louisiana REALTORS ® is proud to have supported this Act to promote transparency and consumer protection in the real estate industry while allowing for continued investment in our communities through real estate transactions. Definitions: "Residential real property" means real property consisting of one or not more than four residential dwelling units, which are buildings or structures each of which is occupied or intended for occupancy as single family residences. "Wholesaler" means any person or entity that is either engaged in or intends to engage in the wholesaling of residential real property. "Wholesaling" means securing, negotiating, or facilitating the purchase or sale of residential real property with the purpose of transferring, assigning, or selling a contractual right to purchase or any other equitable interest in the residential real property, whether directly or indirectly, for financial gain. The marketing for sale of the contractual rights or other equitable interests constitutes a presumption that the person or entity marketing or selling the rights or interests is engaged in wholesaling. "Wholesaling" includes but is not limited to the following: (a) Entering into a contract to purchase residential real property with the intent of assigning or selling the contractual rights to another party before taking possession or legal ownership of such residential real property. (b) Simultaneously consummating or closing two separate transactions relative to the same residential real property, including one transaction with the original owner and seller of the residential real property and another transaction with the end buyer, without the purchaser providing all funds needed to close the sale transaction with the original owner and seller and without the intent to reside in, occupy, or otherwise materially improve the residential real property.
NAR is sharing its latest consumer guide, Seller Handoff Checklist . Sellers can create a smooth transition for the new owners using the new one-page guide. It offers a handy checklist of information and resources that sellers can pass along—from appliance manuals to paint colors to garbage pickup schedules—as well as suggestions for goodwill gestures that will help buyers feel they made a great purchasing decision. As a reminder, all guides in this series are available for download—in both English and Spanish—on facts.realtor . Please allow up to two weeks for the Spanish version of the latest resource to be translated and uploaded. For ease of reference, below is a list of the most recent guides: NEW: Seller Handoff Checklist Defining Home Buying Needs vs. Wants 10 Tips For Unpacking Smartly After A Move UPDATED: Multiple Listing Services Overcoming Roadblocks to a Sale or Purchase Thank you for your continued engagement with the “Consumer Guide” series and for sharing the resources with prospective clients to ensure they have the information they need to find success in their home buying or selling journey. Remember that these guides are for informational purposes only and are not meant to enact or change any existing NAR policy. Check out the next consumer guide on condominium insurance.
NAR Community and Transportation Preference Survey reinforces need for housing choices and shows support for community design to easily access daily destinations.
