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If it quacks like an ad

By: Hank Lerner, Esq. on in  |   | 

Editor’s note: this article was updated on Oct. 15, 2020.

We get a lot of questions about advertising rules and regulations. These days they tend to come in three flavors:


Question #1
: “I see that ‘everyone’ is doing X, even though it looks like it might violate the law.  But since everyone is doing this it must be legal, right?”

Short answer: No, it is not.

Longer answer:  If “everyone” was going to jump off a bridge, would you do it too?  The rules are the rules (see question #2).  The fact that you might see large numbers of people breaking the rules doesn’t mean that they’re acting legally or ethically, just that they’re wrong and they haven’t been caught.

Question #2: “Given that the online universe is totally different than ‘real’ advertising, there must be fewer rules, right?”

Short answer: No.

Longer answer: Advertising is advertising. If you’re attempting to get someone to partake in the goods (listings) and services (real estate representation) you’re peddling, you are engaged in advertising. Period.

— Sending an e-mail to a client’s brother asking if they’re ready to buy? Advertising.

— Putting listing information on your Facebook page? Advertising.

— Google AdWords? Advertising.

And just to be clear, the rules that are different are actually MORE strict, not less.

While RELRA and the regulations of the State Real Estate Commission make no differentiation between electronic and non-electronic advertising, NAR has not only gone to great lengths to tweak the Code of Ethics (primarily Article 12) to make it clear that all rules apply regardless of the medium, have even added additional Standards of Practice explicitly directed at electronic advertising and communications.

Question #3: “They’re not doing it right. Make them stop.”

Short answer: No. We can’t.

Longer answer: While I appreciate that you might think PAR can make somebody comply with the law or the Code of Ethics, we have no enforcement authority. We certainly put a lot of effort into trying to be sure that members are informed about the rules, but the only way to deal with a potential legal violation is through the Commission, and the only way to address a potential ethics violation is through your local Professional Standards Committee. While we or the Legal Hotline can certainly discuss whether something may or may not be a violation, we can’t solve the problem for you.

Not trying to be rude here, but to be completely clear: If you have a complaint, talk to the broker to see if they’ll fix the problem, or file the appropriate complaint with the Commission or your local association. Don’t send the information directly to PAR – if you believe someone should be enforcing certain rules, you need to take those formal steps to file the relevant complaint.

And ESPECIALLY don’t send me a non-compliant ad in an unmarked envelope with no return address and a hand-scrawled note saying “Why aren’t you doing something about these people?????????” [You know who you are…although I clearly don’t….]

So in that spirit, if you have a story about particularly egregious advertising violations in your market, DON’T share it with me here. Talk to the broker/agent about what you think they’re doing wrong or file the complaint.

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