Explainer: The debate over letting Pa.’s real estate industry get back to work

Pa. is only state in nation where real estate is on hold during coronavirus

• Benjamin Pontz
  BioRecent Stories

  

  Ben Pontz covered state and local government for PA Post. He previously worked as an Associate Producer with Smart Talk. He is a graduate of Gettysburg College where he double majored in political science and public policy with a minor in music and he served as editor-in-chief of the campus newspaper, The Gettysburgian.

Pennsylvania is the only state in the union that has not deemed real estate a life-sustaining business under coronavirus lockdown restrictions, the state association of realtors says.

Open houses, home inspections, photography for home listings, and closing activities are among those aspects of the real estate business that have been limited since mid-March, when Gov. Tom Wolf issued a stay-at-home order that limits Pennsylvanians to their homes for any non-life sustaining activities.

And while some of those activities are permitted in counties that have entered the yellow phase of the governor’s reopening plan, not all counties are equipped, for example, to accept electronic filing of documents and not all notaries are able to conduct electronic notarization, which the legislature authorized last month.

Realtors and others involved in real estate have been urging Wolf to let the industry get back to work. The legislature, meanwhile, moved last week to do just that, passing House Bill 2412 to direct the Department of Community and Economic Development to issue a waiver that would allow real estate professionals to resume their businesses in accordance with social distancing guidelines and waive municipal requirements to conduct inspections for the duration of the state’s emergency declaration.

In the House, 25 Democrats joined all Republicans in voting for the bill on concurrence; five Senate Democrats joined all Republicans to pass the legislation. Wolf, however, has promised a veto.

State Sen. Lisa Boscola (D-Lehigh and Northampton) was among those Democrats who supported the House bill, and she sponsored her own bill, Senate Bill 1135, which has not yet moved in the Senate.

“I just spoke in support of #HB2412 – housing is a basic necessity & PA is the ONLY state in the NATION that you can not purchase a home. This needs to end TODAY,” she tweeted last week shortly before the Senate passed the House bill.

After the governor said he would veto the bill, on Sunday evening, Senate Democratic Leader Jay Costa and House Democratic Leader Frank Dermody sent a letter to Wolf denouncing Republicans’ attempts to “pass unconstitutional bills,” including HB 2412. But the two suggested to Wolf that “an approach that prohibits open houses, requires limited contacts, and implements other practices to limit coronavirus spread could allow for real estate services to resume, even in red phase areas of the commonwealth.”

» Sign up for The Context, our daily newsletter about governing and governments across Pennsylvania.

Senate Democratic Leadership spokesperson Brittany Crampsie did not identify any substantive differences between what HB 2412 would do and what Dermody and Costa proposed except that the legislation would apply to future emergencies and infringe on any governor’s executive power.

“We are asking the governor to consider taking steps already in his power to respond to the specific conditions that exist in Pennsylvania right now. It’s a more targeted approach that responds to current conditions,” she said. “The governor, along with Dr. Rachel Levine, has been doing excellent job steering the Commonwealth through this crisis. Now is not the time to undermine the authority that the General Assembly rightfully gave to him to address emergencies.”

Crampsie said that legislative attempts to override the governor’s exercise of emergency powers are an unconstitutional violation of separation of powers.

“In short, the governor’s executive orders and proclamations issued during the disaster emergency declaration have the full force and effect of law,” she said. “As such, to the extent any bill seeks to override the operation of that executive power, there is a constitutional separation of powers violation.”

Sen. Boscola’s chief of staff Joseph Kelly said that the senator would support either an executive order or signing the legislation, noting that an executive order would make legislation unnecessary.

But to state Sen. Scott Martin (R-Lancaster), the legislature has an important role to play in overseeing the governor’s use of emergency authority under Title 35 of the Pennsylvania Consolidated Statutes.

“Our job is to question authority and to stand up for people and stand up for what is right,” he said. “Remember, these are co-equal branches of government. He has the ability to do this on his own and boy do I wish he would have done it on his own from the very beginning on this and other things. But he has consistently shown that he isn’t capable of that, and this is our way of standing up for the people of Pennsylvania for what’s right.”

“It’s not like we’re going against the flow,” said Martin. “Forty-nine other states absolutely allow it, and I think we have every right to ask questions and advocate because people are really being hurt by this.”

Wolf spokesperson Lyndsay Kensinger said in an emailed statement Monday night that the governor’s focus is on moving towards the safe reopening of all Pa. counties, though she did not address questions about the administration’s view on real estate.

“Stemming the spread of COVID-19 so more counties can move to the yellow phase will help additional businesses to safely reopen,” said Kensinger.

The administration has begun to move on enforcement measures against realtors who violate the existing order, according to Kim Shindle, a spokesperson for the Pennsylvania Association of Realtors.

“We have heard from our legal counsel that the state has begun investigating licensees perceived to have violated the governor’s orders,” said Shindle.

From her organization’s perspective, either an executive order or signing HB 2412 would be acceptable.

“The Pennsylvania Association of Realtors continues to advocate for a solution to allow all real estate professionals to operate safely in every county of Pennsylvania, whether the governor signs House Bill 2412 or he issues an executive order,” she said, noting that more than 11,000 messages have been sent to the governor urging him to sign the bill in the last week.

If Wolf vetoes the bill, Martin said he would like to see the Democrats who voted for it join in an override vote. From his perspective, the letter the Democratic leadership sent was “hypocritical” because it advocated for essentially the same measures as the underlying HB 2412 would have enacted: resuming real estate transactions with appropriate social distancing measures.

“For them to turn around and basically ask for [real estate] to be open, it just doesn’t make sense,” he said. “It’s kind of a slap in the face to see this route taken.”

Editor’s note: This post was updated to add comment from Lyndsay Kensinger.