BY: KELLY A. NEAVELORANGE COUNTY OFFICE
Social networking is increasingly popular in the real estate world. Many real estate agents, REALTORS®, and brokers are using social networking websites to notify their “friends” and “followers” of property listings. Surely this act seems innocent enough, but the agent, REALTOR®, or broker could be violating state law, NAR’s Code of Ethics, MLS rules, and possibly federal law. Several issues arise when using social media sites to post listings, whether it’s the agent’s, REALTOR’S®, or broker’s own listing, or that of other brokers.
The first issue is stale postings. A stale posting results when an agent, REALTOR®, or broker posts a listing on his or her blog, Facebook or Twitter page and then the house sells, the listing expires, or the owner withdraws the property, and the listing is not removed or updated. Very few agents, REALTORS®, or brokers remember to go back and delete these postings from their sites. Postings on the internet do not have a shelf life. A person can search for a property on the internet and these old postings that are now inaccurate and misleading can come up. The problem with these old postings is that they do not automatically update as changes are made in the MLS to reflect a change in price or status. In Article 12 of the 2011 Code of Ethics and Standard of Practice of the National Association of REALTORS® (NAR Code of Ethics), Standard of Practice 12-8 requires REALTORS® to promptly take corrective action when they become aware that information posted on one of their websites is no longer current or accurate. This means that REALTORS® have an obligation to go back and remove any postings on their blogs, Facebook or Twitter accounts, or at least to update the information to reflect the current status of the listing.
The second issue is another possible NAR Code of Ethics Article 12 violation. Article 12 requires agents to present a “true picture” of the advertisement and to include their license number and contact information on every page of their advertisement. It is virtually impossible to comply with Article 12 in a 140 character tweet as allowed on Twitter. Standard of Practice 12-5 does provide for an exemption from this disclosure requirement but only when the advertisement is linked to a display that includes all required disclosures. When agents, REALTORS®, and brokers post one of their listings on a social media site, they must include all of the required information in order to be in compliance with Article 12.
The third issue is the fact that postings on social media sites are considered advertising. Advertising is defined as any activity that is intended to attract potential customers, including websites, social media sites, and blogs. Basically, any communication between a broker and the public is advertising. However, there are factors that could possibly allow a posting on a site like Facebook to fall outside the realm of advertising, such as: (1) if the post consists of only a link to the actual listing on the IDX site; or (2) if the Broker’s privacy settings on Facebook allow only a small number of “friends,” consisting of only clients, to receive the listing. Either of these scenarios could be seen as delivering information in the context of the brokerage relationship. However, there is a fine line. It is safer to assume that any listing on any social media site is considered advertising and all state laws and rules must be followed.
Lastly, Article 12 of the NAR Code of Ethics and the NAR Model MLS Rules and Regulations prohibits advertising of another broker’s listing without permission. Pursuant to state licensing law, a person can only list or advertise the property if he or she has a contract with the seller. As such, only the listing broker can advertise his or her own listing. NAR has recognized these issues with social media sites and has indicated that they will be addressed at the next meeting. Until then agents, REALTORS®, and brokers need to be careful when they post another broker’s listing on their Facebook, Twitter or blog, or they could be the subject of an ethics complaint filed with their local Association for advertising without authority.
Social media is a fast way for the busy agent, REALTOR®, and broker to disseminate information. Brokers need to make sure their agents are not violating any state real estate laws or the NAR Code of Ethics. All brokers need a social media office policy in place that defines how agents and REALTORS® can specifically use social media sites and to ensure that expired or sold listings are removed from any social media site.
Kelly A. Neavel manages the Orange County Office of The Giardinelli Law Group, APC.