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Real Estate Advertising Content in THIS ISSUE P1 General Real Estate Advertising Rules Every REALTOR® Knows the Importance of Advertising

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Real Estate Advertising Content in THIS ISSUE P1 General Real Estate Advertising Rules Every REALTOR® Knows the Importance of Advertising AUGUST 2015, 15.08 Real Estate Advertising Content IN THIS ISSUE P1 General Real Estate Advertising Rules Every REALTOR® knows the importance of advertising. Licensees advertise listed properties and market themselves. Clever and efficient advertisement is often essential to succeeding in the competitive Rules for Advertising Different Listings real estate industry. The savvy REALTOR® can engage in attractive, P4 and Information interesting advertising without crossing the lines and issuing advertising that potentially violates the laws protecting the public from deception. The laws and regulations that impact real estate advertising come P6 Fair Housing Advertising from many sources. Federal, state and local laws as well as rules and ordinances regulate who can advertise, the authority required to advertise on behalf of another, when the advertising may be performed, Hotline Questions and Answers: where the advertising may appear, the content of the advertising and P7 Advertising Content the audience for the advertising. This Legal Update will address primarily the content of real estate advertising, including the basic rules for all advertising, the regulations pertaining to advertising different sorts of listings and property Admin. Code § REEB 24.04 states four cardinal rules that all Wisconsin information, the guidelines for advertising that includes credit terms and licensees must follow when engaging in any advertising, regardless of fair housing advertising rules. The Update concludes with Legal Hotline whether it is written, verbal or electronic. questions and answers regarding advertising practices. Part 2 of the 1. Advertising cannot be false, deceptive or misleading discussion of real estate advertising, focusing primarily on the methods and techniques used for communication of marketing content, will be Licensees are prohibited from advertising in a manner that is false, found in the October 2015 Legal Update. deceptive or misleading. Article 12 of the REALTOR® Code of Ethics similarly provides that REALTORS® must present a true picture in their advertising and representations to the public. The bottom line is that the law does not tolerate advertising that misleads consumers into engaging General Real Estate Advertising a broker or buying a property based upon false representations. The Rules truth is always best. 2. Advertising must include the firm name Advertising and promotion are among the key services a broker provides. Advertising may be communicated via the MLS, email, A real estate licensee — a broker or salesperson — working for a thumbnails, text messages, Facebook, Twitter, Pinterest, Tumblr, licensed sole proprietor broker or a licensed real estate company with Instagram, Google+, pictures, websites, outdoor advertising signs, a licensed broker entity license — a firm — must advertise under the billboards, television, radio, magazines, periodicals, leaflets, brochures, supervision of and in the name of that firm. All advertising must include telephone calls, letters, homes magazines, sales presentations, public the firm’s name, as it appears on its license, or a trade name on file with speeches, graphics, facsimile transmissions, PowerPoint, face-to-face the Wisconsin Department of Safety and Professional Services (DSPS). conversations and other media. Wisconsin licensees should keep in Note that disclosure of the firm’s name is the only required element — mind that the basic rules and laws governing real estate advertising there is no rule requiring that the office telephone number, address, apply to all of these. website or any other licensee or firm information be included. Licensees should, however, check company policy to see if other information is Basic advertising rules required by the firm in advertising. The basic advertising rules for all media come from Wisconsin license A similar rule found in Standard of Practice 12-5 in the REALTOR® law and in most cases are echoed in the REALTOR® Code of Ethics. Wis. Code of Ethics allows for the identification of the firm via linked materials Wisconsin REALTORS® Association Page 1 Legal Update, August 2015 Previous Page Next Page P2 in instances where the small size of an electronic display such as a possible agreements regarding real estate transactions should be tweet makes disclosure of the firm name impractical: committed to writing per § REEB 24.08 and Article 9 of the Code of “REALTORS® shall not advertise nor permit any person employed by Ethics. or affiliated with them to advertise real estate services or listed property 4. Owner must agree upon advertised price in any medium (e.g., electronically, print, radio, television, etc.) without Brokers can advertise a property only at the price agreed upon with disclosing the name of that REALTOR®’s firm in a reasonable and readily the owner per Wis. Admin. Code § REEB 24.04(4) and Standard of apparent manner. This Standard of Practice acknowledges that disclosing Practice 12-4. the name of the firm may not be practical in electronic displays of limited information (e.g., “thumbnails”, text messages, “tweets”, etc.). Such Complaints regarding advertising in violation of these basic precepts displays are exempt from the disclosure requirement established in this can be made to the local REALTORS® Association or the Real Estate Standard of Practice, but only when linked to a display that includes all Examining Board/Department of Safety and Professional Services, required disclosures. (Adopted 11/86, Amended 1/11)” which regulates all real estate licensees. There also are a few exceptions when even the firm name is not Attribute the source required under § REEB 24.04(2): A major challenge in advertising is selecting words that will precisely • When a licensee is advertising his or her own real estate for rent, convey the intended message. Consumers tend to rely upon stated data there are no restrictions: no firm name must be included in the as the absolute truth unless the statement is specifically qualified. advertisement. A Wisconsin licensee can be found liable to a buyer for inaccurate • An ad for the sale of the licensee’s property, provided that such statements made by the broker that appear to the buyer to have been sales are infrequent, or for the solicitation of real estate for made from the broker's own personal knowledge. In Wisconsin, the law purchase by the licensee, may be placed only if the licensee provides that an inexperienced buyer should be entitled to rely on the identifies him or herself as a real estate licensee in the ad. factual statements made by a professional. Accordingly, when a broker Standard of Practice 12-6 similarly provides that REALTORS® receives data from the seller, the city treasurer's office, or another third advertising personally owned, unlisted property shall disclose their party and restates the information in the MLS data sheet or in other status as owner or landlord and as a REALTOR® or real estate licensee. advertising as if it were fact, the broker may be responsible for the accuracy of the information. Accordingly, REALTORS® are recommended Although not required by license law, a company’s office policy to specifically attribute data used in advertisements, such as acreage, manual may mandate that all of a licensee’s personal sales, purchase square footage and assessed values, to its source, and/or use general and rental transactions go through the company. This would mean that disclaimers. Disclaimers may not, however, provide certain and absolute a salesperson cannot sell, buy or rent on their own but rather must list protection in all cases. all properties to be sold or rented with the company and work through the firm when buying properties. When the licensee’s personally owned REALTORS® should consider general disclaimers on all advertisements property is listed with his or her firm, this is treated as a normal listing to avoid the presumption that all statements made by a licensee have requiring the inclusion of the firm name. Additional disclosures, such been verified and are personally known to be true by the licensee. It as “licensee-owner,” are not required in these ads. Local MLS rules, is generally recommended that disclaimers contain language to the however, generally require that any licensee ownership interest be effect that the stated information was provided by the seller and other disclosed in the MLS data sheet and listing. third parties and has not been verified by the broker unless otherwise indicated. 3. Property may be advertised only with the consent of the owner Wis. Admin. Code § REEB 24.04(3) indicates that brokers must obtain Photographs the consent of the owner before advertising the property. Standard of Photographs are subject to copyright law. Copyright protection exists Practice 12-4 prohibits REALTORS® from advertising a property without from the time a work, such as a photograph, is created. There is no authority. requirement to register the photograph, and reproduction by anyone Historically, a listing contract was required to provide real estate other than the creator, without the creator's permission, is a violation of brokerage services. However, due to the 2006 modifications to U.S. copyright law. The copyright of the work immediately becomes the Wisconsin agency law, a broker may provide brokerage services without property of the author, here the photographer, who created the work. a client or subagency relationship on a pre-agency basis per Wis. Only the author or those deriving their rights through the author can Stat. § 452.134(1). A licensee only needs an agency agreement prior rightfully claim copyright. to negotiating on behalf of the party in a real estate transaction; it is The 1976 Copyright Act generally gives the owner of copyright the not required for advertising provided other advertising rules are met. exclusive right to do, and to authorize others to do, the following: Presuming there is owner consent, preferably in writing to meet the Wis. • Reproduce the work. Admin. Code § REEB 24.08 requirements, an agent could advertise a property without a listing contract.
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