Real Estate Advertising Compliance and the law RE41R05 Stephen Ryan, Esq. MAR General Counsel & Director of Government Affairs Michael McDonagh, Esq. MAR.

Real Estate Advertising Compliance and the law

RE41R05

Stephen Ryan, Esq.MAR General Counsel &

Director of Government Affairs

Michael McDonagh, Esq. MAR Associate Counsel

2/12/2010

2011 © Massachusetts Association of REALTORS®


• Sources of guidance – REALTOR Code of Ethics– License Law Regulations– Federal Laws and agency guidance ( i.e.

HUD)– MLS Rules



• Code of Ethics Article 12

REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representations. REALTORS® shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional. (Amended 1/08)


• Code of Ethics- Common issues:

• (See Article 12)

– Offering of inducements to list, sell, purchase– Advertising other company listings– “Sold signs”– Keep your website current– Canvassing/general mailings



Code of Ethics ConsiderationEffective January 2010

15-2 The obligation to refrain from making false or misleading statements about competitors, competitors’ businesses and competitors’ business practices includes the duty to not knowingly or recklessly publish, repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means.



• LICENSE LAW: 254 CMR 3.00 (9)• Advertising. A broker shall not advertise in any way that

is false or misleading.• Broker Identification. No broker may advertise real

property to purchase, sell, rent, mortgage or exchange through classified advertisement or otherwise unless he/she affirmatively discloses that he/she is a real estate broker. No broker shall insert advertisements in any advertising publication or other means where only a post office box number, telephone, facsimile, electronic mail number or street address appears. All advertisements shall include the name of the real estate broker.


• Other Common areas of risk related to advertising– Do-Not-Call Registry– Problems with square footage calculations– Avoid statements such as “completely

updated”• making sure all of your statements are accurate

– Open house agency disclosure– “As Is” Clauses and other disclaimers




• Always consider fair housing issues when advertising

• FAIR HOUSING: THE BASICS

– DISCRIMINATION IS SIMPLY NOT TOLERATED

– HUD

– MCAD


• Fair Housing Basics– Describe the house, not the type of person

you feel should live in the house.– ALWAYS avoid discriminatory advertising and

illegal steering




Federal Protected Classes

1. Race

2. Color

3. Religion

4. Sex or gender

5. Disability or handicap

6. Familial status

7. National origin

MA Law adds the following classes

1. Sexual orientation

2. Age

3. Children

4. Ancestry

5. Marital status

6. Veteran history

7. Public assistance



• Landlords can set standards for renters.– However, they must apply them to everyone

equally.– Examples include: income range, credit

checks including owing too much money, landlord references, and criminal background check.

2011 © Massachusetts Association of

REALTORS®


Limited Exceptions: Rentals & Children Key:• State Law provides there limited

exemptions for owners of certain types of residential properties. These exemptions do not apply to real estate agents.



Limited Exceptions: Rentals & Children

1. Dwellings containing three apartments or less, one of which apartments is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. An “elderly person” means a person sixty-five years of age or over, and an “infirm person” means a person who is disabled or suffering from a chronic illness.




2. The temporary leasing (1 yr or less) of a single family dwelling, a single apartment, or a single unit of a condominium, by the owner of such dwelling who ordinarily occupies the dwelling his or her principal place of residence.




3. The leasing of a single dwelling unit in a two family dwelling, the other occupancy unit of which is occupied by the owner as his residence.

According to 2009 NAR survey, 84% of REALTORS are using social media.

87% on Facebook.

58% on LinkedIn.



•Facebook has had more monthly visitors than MSN for an entire year.•Last Month, Facebook got more US Traffic Than Google.

Source: Compete.com – April 2010

Content on the web spreads FAST, and nothing is ever really gone


Boston Herald October 27th, 2009


Some potential risk areas with social media:

Defamation (Libel)

Copyright Infringement

Antitrust Violations

Fair Housing Violations

Harassment

Code of Ethics Violations (Think about Article 1, 2, 12, 15)

Real Estate Advertising Compliance and the law RE41R05 Stephen Ryan, Esq. MAR General Counsel & Director of Government Affairs Michael McDonagh, Esq. MAR.

Documents

real estate broker

real estate communications

real estate professionals

advertising publication

misleading statements

real property

broker identification

lawcode of ethics article