What are the Rules?
For agents and brokerages who do or have subscribed to some level of ambiguity in their advertising, they should understand the practice is not only thought of as a disservice to customers, but the practice itself carries with it serious legal implications, as well. To better understand how the various laws and statutes apply in situations specific to real estate, Whitney Ray, press secretary for the Office of the Florida Attorney General, shared her insights.
“In addition to the general prohibitions for unfair and deceptive practices under Florida Statutes Ch. 501 Part II (FDUTPA), Florida Statutes Secs. 817.40 and 817.41 of the Florida Communications Fraud Act specifically address false, misleading and deceptive advertising,” she said.
The specific statutes sections mentioned by Ray are too lengthy to include verbatim, but below are a few excerpts from 817.41 that would apply directly in circumstances of false claims of status:
Sec. 817.41 Misleading advertising prohibited — (Florida Communications Fraud Act)
1. It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.
4. There shall be a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement or any such sale is responsible for such misleading advertisement or unlawful sale.
According to Ray, the laws defining false advertising have been purposefully left vague to ensure that the laws will continue encompassing a wide variety of business acts in the future.
“Many factors are applied to determine if an advertisement may be deceptive or misleading, such as the total net impression of the advertisement, the clear and conspicuous nature of material conditions pertinent to the offer and whether the terms constitute mere puffery,” she said.
Ray was quick to add, however, that any issues involving the legality of a sale, lease, rental or appraisal of real estate by a person licensed, certified or registered pursuant to Florida Statutes Chapter 475, would not be charged under the FDUPTA, but would rather be handled by the Florida Real Estate Commission and the Florida Department of Professional and Business Regulation.
Separate from state law, false or misleading advertising is a practice expressly forbidden by NAR’s Realtor Code of Ethics, which is updated every year. In article 12 of the document, the language clearly states that Realtor members “shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing and other representations.” Failure to do so, while not resulting in legal action, could cost a Realtor their membership, as well as the accompanying perks.