Are Your Social Media Ads Breaking the Law?

This quiz and its results were created by Dr. Lee Davenport and was published to REALTOR Magazine on September 12, 2019. The quiz is geared to Qualifying Brokers, however, the "Broker Beware" comments are good for all.

Find out what mistakes are most common and how to keep away from a legal hot mess.

Question 1. Do your social media posts or descriptions make people feel unwelcome? For example, do you say, “No _____” and then fill in the blank with exclusions like Supplemental Security Income, children, etc.?

Broker Beware: While 94% of respondents said “never,” what about the remaining 6%? What if one is on your team? Nearly all respondents who said they’d excluded certain groups said they did so because it was an option on the marketing platform they were using. If your neck muscles are starting to tense up, it’s for good reason. Let’s redirect this stress by calling out the marketing platforms that have options that allow agents to potentially exclude protected classes under federal and state fair housing laws. You may already know that the U.S. Department of Housing and Urban Development is suing Facebook, saying the site’s ad platform enables discrimination. Agents shouldn’t wait for HUD to start examining their marketing efforts before ensuring their social media advertising complies with federal and state laws.

Question 2. Are you hiding or omitting your brokerage name on social media posts?

Broker Beware: More than 27% of the respondents admit that they are not including their brokerage name in their marketing. This is a direct violation of the REALTOR® Code of Ethics (see article 12) and likely a violation of your state’s laws and regulations, depending on where you live. Agents should review social media ads and posts to ensure all necessary information is included. You may want to consider sharing tips about what’s required under your state’s laws in an email to your team. NMREC Rule:

  • Every qualifying broker advertising real property for others for sale, purchase, lease, exchange or rent, including short-term or vacation rentals, or advertising real estate services, shall at a minimum, use in such advertising the trade name and current brokerage office telephone number as registered with the commission. Directional signs are exempt from these requirements. Additional telephone numbers may be used in such advertising

  • Associate brokers, when advertising real property for others for sale, purchase, lease, exchange or rent, or when advertising real estate services, shall include in the advertisement the trade name and the current telephone number as registered with the commission of the brokerage with which they are affiliated. Effective January 1, 2017, the brokerage trade name and telephone number shall be prominently displayed in a type size not less than thirty-three percent of the type size of the associate broker’s name, or in the case of a team of associate brokers, the team name.

  • These requirements apply to all forms of advertising, including but not limited to print, audio and video recordings, computer presentations, online and electronic media. In the event that disclosure of the brokerage name and telephone number as registered with the commission is not practical in electronic displays of limited information, such as thumbnails, text messages, links and tweets of 200 characters or less, such displays are exempt from the disclosure requirement provided such displays are linked to a display that includes all of the required disclosures.

Question 3. Do you like to specialize in finding real estate clients around their seasons of life?

Broker Beware: Slightly more than 30% of respondents are doing just that. This specialization may not be a problem, as long as agents aren’t engaging in any discriminatory behavior that violates state or federal laws or the Code of Ethics while marketing a property. For example, familial status is a federally protected class, age and military status are protected in some states’ fair housing laws, and gender identity and sexual orientation are protected in the REALTOR® Code of Ethics.

Question 4. If someone informs you that he or she feels unwelcome by your social media post or video, have you ever responded, “That’s what my seller told me to write”?

Broker Beware: The vast majority—96% of respondents—said “never,” but the remaining 4% responded yes because they say their duty is to the client. While agents do have a duty to their clients, that does not supersede their duty to obey the law. When we make individuals, particularly those who belong to a protected class, feel unwelcome, we could be inviting trouble. It’s our job as real estate professionals to educate clients on our duties and responsibilities to them and (not or) the law.

Question 5. Have you used filters or staging apps for your real estate listing photos without disclosing that an app was used?

Broker Beware: While about 90% answered “never,” the remaining 10% could cause needless headaches for themselves. The Code of Ethics requires a “true picture” in all representation, including images, and REALTORS® may not exaggerate, misrepresent, or conceal pertinent facts relating to a property. Be careful that your use of filters or staging apps doesn’t create anything other than a “true picture” in your listing photos.

Question 6. To generate higher quality leads, do you currently select social media targeting that allows you to sort by race, religion, familial status, color, handicap, national origin, or sex?

Broker Beware: More than 7% said “yes.” This is 2019. While reading the responses, I felt like a DeLorean should drive by to get me out of the 1950s. Agents have to be cognizant that they are not discriminating in their marketing, which would likely violate state and federal fair housing laws. Even more shocking, almost a third of those respondents indicated that they chose options to exclude simply because it was an option on the marketing platform. Simply because an option is available does not mean it is appropriate or legal to use. This is the second time in this short seven-question survey that this was respondents’ prevailing reason for violating the law.

Agents may be on “autopilot” when it comes to legal areas that require attention and care. It makes me wonder, what else may be short-changed (perhaps time for more quizzes)? As I suggest after Question 1, agents should ensure their marketing complies with federal, state, and local laws.

Question 7. Complete this sentence: Ignorance of the law is________.

Broker Beware: In this multiple-choice question, 97% of the survey participants selected “no excuse.” However, the remaining 3% chose “not a big deal because I am sure I will get a warning first.” This attitude is a liability both to the agent and to his or her firm. Agents and teams should be less—shall we call it “creative”—in their marketing and have a mindset of asking for permission rather than assuming forgiveness will be an option.

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