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Legal IssuesAdvertising rules: Part I
Of all the calls to the Hotline, questions about advertising are probably second in frequency only to questions about handling escrowed funds. Now is probably as good a time as any to review what is — and is not — permitted when REALTORS® advertise. Most of you are aware that the PA Real Estate Commission is the entity that imposes fines or more serious punishment on licensees who break advertising laws. It is important to understand that these are generally some of the easiest infractions to prosecute because the advertisement in question is right in front of them!
Before we discuss internet advertising and team advertising, let’s talk about what constitutes an advertisement. Certainly circulars, flyers, newspaper advertisements and yard signs are advertisements. But so are business cards and web sites. Directional signs may also be advertisements when they contain anything other than directions (e.g., logos, phone numbers).
Today’s column talks about rules about signage. Parts II and III will cover advertising rules for REALTOR® web sites and team advertising.
The first rule is that licensees must have the seller’s or landlord’s permission. While there’s no legal requirement to get this authorization in writing, it’s always best to document these decisions. (If you use PAR listing agreements, the seller’s and landlord’s authorization is included.) You may also want — or need — to get permission from the property owner when you place directional signs on land owned by anyone other than your client. Complaints of this nature likely fall outside the province of the Real Estate Commission, however, placing signs on private property may be classified as trespassing or the owner may just yank out your expensive signs and throw them away. Do you need to have the permission of the title owner before advertising? The safe answer is “yes.”
The second rule is that the employing broker’s name and telephone number must be on all advertisements and must be given equal prominence to the salesperson’s name and telephone number. There are no requirements or regulations that limit who can be listed first or where the broker’s name and number have to be; an agent can even include his direct dial or cell phone number. The only requirement is that the broker’s name and number be equally as prominent as the agent’s. (A good synonym for “prominent” is “conspicuous” – in other words, the broker’s name and number must be as noticeable as the agent’s name and number. Prominence can be achieved through font size, color, graphics and other visual techniques.) A good rule of thumb is to use the main office number as the broker’s number: in other words, the number you’d be given if you called directory assistance.
A final reminder: before embarking on any advertising campaign, make sure your broker (and perhaps legal counsel) has reviewed the advertisement and offered her blessing.
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About Brett: Brett Woodburn, Esq. is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline. |
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This is a topic that is near & dear to my heart!
I am known in some local circles as the “ad police” because I’ve been known to point out blatant offenses only to have it fall on deaf ears…. over and over.
I agree with Fred, and it’s very frustrating! Good to know I’m not alone, though.
Nancy, that is a topic for an upcoming (relatively soon) blog. Stay tuned!
The biggest problem is that there are agents that continually violate these rules and the enforcement against them is pathetic.
The commission makes you fill out a very long form and it can take years before anything is done and the fines are minimal.
Until the state gets serious about this, the violators will keep on laughing at the rest of us.
My Question would be: If you had several listings that sold and advertized those sales on a flier, would you need to get permission from the buyer/new owner of the house who was not your client?
Just wondering because I think we do that all the time and doubt if anyone asks for permission to advertize that you sold their home.
Brett,
Great article! I wrote a course on this precisely because when you review the SREC fines and penalities, advertising is a lot of them! We still have too many agents out there who think Facebook and craigslist are somehow exempt!
Happy New Year Brett….thanks for clarifying in this article. I think most advertising issues all come down to agents with no supervision who do what they want. I can’t tell you how many times I have driven by checking out the competition to find only the brokerage name on the sign but the agent’s direct numbers and NOT the brokerage. Let’s have the commission start fining the broker also. Maybe that will get them more involved with supervising their agents ads!!