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.
From the Louisiana Department of Insurance: During a press conference today with Governor Jeff Landry, Insurance Commissioner Tim Temple announced that registration for the next round of the Louisiana Fortify Homes Program (LFHP) will open at 8 a.m. on Monday, June 1, and will include 3,000 grants. The registration period for this lottery will be open for three weeks, closing at 5 p.m. on Friday, June 19. During the press conference, Gov. Landry signed HB 1187 by Rep. Paul Sawyer, which will allow Louisiana Citizens Property Insurance Corporation to transfer $50 million in additional Katrina bond assessment funds to the LFHP. Combined with the $30 million in funding the program will receive through taxes and fees on insurance entities, the LFHP will receive a total of $80 million this year. “By lowering overall losses, we can reduce insurance and reinsurance costs, draw more insurers into the market, motivate existing companies to write additional policies and lower insurance premiums,” said Commissioner Temple. “That is exactly what the Louisiana Fortify Homes Program is designed to do.” The list of coastal parishes that are eligible to participate is expanding to include Acadia, Jefferson Davis and Lafayette parishes. Additionally, homeowners who live in the portions of Ascension, Calcasieu, Iberia, Livingston, St. Martin, St. Tammany, Tangipahoa and Vermilion parishes that were previously not included in the program will now be eligible to participate. A map showing the full list of eligible parishes is available on FortifyHomes.La.Gov . “Louisiana is the fastest growing state in the country for Fortified roofs, and that growth is not by accident—it is the result of strong support from Governor Landry and legislators like Chairman Talbot, Chairman Firment and Representative Sawyer, targeted program design, and a clear recognition that strengthening homes is one of the most effective ways to reduce insurance losses,” said Commissioner Temple. “At the end of the day, this program is about more than just roofs. It is about protecting families, it is about strengthening communities, and it is about putting Louisiana in a stronger position—both physically and economically—to face the challenges ahead.” To participate in the lottery, homeowners must register during the June registration period. Homeowners who registered for a previous round but were not selected must register again to participate. People who register on the last day of the registration period have the same chance of being selected as those who register on the first day, so there is no need to rush to register as soon as the period opens. When registering, homeowners will need to upload their homestead exemption, insurance policy declarations page that includes wind coverage, and flood insurance declarations page if the residence is in a flood zone. Homeowners who need assistance obtaining a copy of their homestead exemption should contact their parish tax assessor. Homeowners can contact their homeowners and flood insurance companies or agents for a copy of their policy declarations page. Homeowners are required to create a profile in the LFHP system before registering for the lottery and may do so by visiting the LFHP website and clicking the Login button. Homeowners who previously created a profile may use the same one for this and future rounds. Once the lottery registration period closes, the LFHP will randomly select 3,000 participants and send email notifications to registrants about whether they were selected to participate. These selection notices will be sent via email beginning on Monday, June 22. There are several program requirements that homeowners should be aware of before registering. Those interested in the program are encouraged to review eligibility information and frequently asked questions at FortifyHomes.La.Gov to determine whether their home meets the requirements for the program. If selected to participate in the grant program, homeowners will be financially responsible for having the home evaluated by a FORTIFIED-certified Evaluator as well as costs for the roof upgrade including permits, inspections and construction costs beyond the amount of the grant The LFHP provides grants of up to $10,000 for homeowners to upgrade their roofs to standards set by the Insurance Institute for Business & Home Safety. The program helps Louisiana homeowners strengthen their roofs to better withstand hurricane-force winds.
Learn how to lower your debt-to-income ratio before buying a home in Louisiana and why working with an experienced real estate agent can help.
NAR is pleased to share the latest new consumer guide, “Overcoming Roadblocks to a Sale or Purchase,” which helps buyers and sellers prepare for the most common potential pitfalls so their transaction closes smoothly. 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: Overcoming Roadblocks to a Sale or Purchase How Solar Impacts a Real Estate Transaction Navigating Interest Rate Shifts Financing a Renovation When You Buy Staging Your House for a Sale 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. On June 3, we’ll have a new consumer guide on unpacking after a move and a refreshed guide in the value of MLS.
