In a very interesting real estate sector development, the Real Estate Council of British Columbia has updated its advertising requirements for licensees under the British Columbia Real Estate Services Act (see: here and here). In making the announcement, the Council said that:
“Each month, the Real Estate Council receives a large number of complaints relating to licensee advertising. In order to reduce the number of complaints, the Council has developed the following information which is designed to assist licensees in creating advertisements that comply with the requirements set out in the Council Rules.”
Three BC Real Estate Council rules govern real estate salespersons’ advertising in BC: sections 4-6 (general advertising restrictions and requirements), 4-7 (which prohibits false or misleading advertising) and 4-8 (advertising in relation to specific real estate) (see: here). In general, these Council rules require licensees to make certain disclosure (e.g., brokerage name), prohibit false or misleading advertising and owner (or agent) consent for advertising specific property.
The Council’s new advertising guidelines, which, according to the Council are intended to “ensure that the public is neither misled nor confused as to who is providing real estate services and to ensure the accuracy of representations”, include a real estate advertising checklist (with common advertising problem areas), as well as information relating to specific types of advertising and issues including disclosure of the brokerage name, a “top six” list of advertising vehicles where the Council commonly finds licensee advertising violations (e.g., Facebook, Craigslist, Twitter and Google+), guidelines for Internet and social media advertising and a discussion of steps to take to avoid false or misleading advertising.
Some of the general guidance in the Council’s new guidelines that is consistent with the Competition Act’s misleading advertising rules include: ensuring that all representations are accurate and verifiable, disclosure of any conditions or limitations, ensuring that any performance type claims – for example, relating to business volume, honours/awards, etc. – are supported and the source of the supporting data disclosed.
The Council provides the following specific guidance for licensees to ensure that their advertising is not false or misleading:
“Section 4-7 of the Council Rules states that a licensee must not publish real estate advertising that the licensee knows, or ought to know, contains a false statement or misrepresentation concerning real estate, a trade in real estate or the provision of real estate services. False statements are those that can be shown to be factually incorrect. Generally, there is little room for interpretation in these situations. The assessment of statements that may be misleading, deceptive or inaccurate, however, is more subjective in nature.
In general, licensees should assume that all statements in an advertisement will be taken at face value and interpreted based on their plain meaning. If the licensee’s intent is to imply something else, or if the licensee is aware that the statement could be interpreted in different ways, it would be better to spell out the intended meaning in plain language, or to provide some form of disclaimer within the advertisement. Failure to do so could result in the statement being deemed misleading, deceptive or inaccurate.
Promises or Offers. If a promise or offer is made in any advertising, any conditions or limitations must be clearly indicated. Additionally, full written details of the terms, conditions or limitations of the promise or offer must be available.
Comparative Claim/Business Volume/Honour or Award. If a comparative claim, business volume, honour or award is noted in any advertising, the basis of the claim/volume/honour/award, (e.g. the source, date and qualifying information) needs to be included to avoid misleading the audience.
Photo Enhancing Software Photo enhancing computer applications make it easy to manipulate photographs in a variety of ways. When using photographs in advertising materials, licensees must use caution so as to not alter or enhance photographs in any way that would misrepresent aspects of the property. While editing out such items as a garbage can or an automobile parked in a driveway would be acceptable, removing nearby power lines or changing any physical characteristic of a property such that it results in a misrepresentation would not be acceptable.
Listing information must be kept current and accurate. Licensees must ensure that when listings have expired, they are immediately removed from websites. Similarly, if property information changes during a listing period, the information posted on websites should be changed accordingly. Licensees should not advertise other licensee’s listings directly on their own website without permission from the listing licensee and if this permission is given, should not alter any of the listing information without approval of the listing licensee. If linking to an outside database of available properties, it should be clear to consumers which listings are the licensee’s and which are not.”
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