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CLAIMPREVENT® BLOG

Attracting Real Estate Clients and Showing Property: ClaimPrevent® Summary 1

Our new ClaimPrevent® Summary Series explores what brokers should include in inductions for new hires from a risk management perspective. In this first article, we address issues for attracting and dealing with clients. 

New hires, as well as existing team members, need to know how to assess the risks and, more importantly, how to mitigate those risks so they (and you, as their broker) don’t end up facing legal issues.

1. Real Estate Marketing and Advertising Issues

RESPONSIBILITY FOR INFORMATION

To protect your brokerage, every team member must understand the importance of accuracy and the consequences of incorrect information in marketing. All it takes is one small mistake to lead to a lawsuit — incorrect square footage, an exaggeration, or an overstatement. Key points to make:

  • When you advertise listings (your own, or those of another licensee), you’re liable for the information you include on your website, flyers, direct mail, email, and social media posts. So be very careful about any statements about the character or condition of the property. If it’s wrong, you may be held liable. 
  • If you make an actual representation about something that you didn’t personally verify, you should advise where the information was obtained. (“Square footage per the MLS,” etc.)

In Texas, for example, you should provide notice in writing that the information was obtained from another source (“Square footage per owner”), and you did not know, or could not have known the accuracy of the information. 

ADA AND WEBSITES

Any website a team member may create must comply with the ADA (Americans with Disabilities Act). Individuals with a disability need to be able to access and view real estate listings. 

  • Any video needs to have a transcript of what is spoken in the video. If the video has no narration, create a transcript detailing what is shown in the video images, so the potential buyer can envision the property features.
  • As you load images on your website, load “Alternate text” with each image to explain the image in words to the sight-impaired.
  • If your website is using a feed directly from the MLS, best to include a disclaimer that you are not responsible for the accuracy of the information.
  • Websites should include a disclaimer in a “Terms of Use” statement. It should cover Limitations of Liability, Third-Party Links, and other terms of use. Ensure the disclaimer clearly says that you will assume no responsibility for the accuracy of the information on the website or blog.

2. Social Media Issues

PERSONAL AND BUSINESS ACCOUNTS

Make sure your licensees understand that their personal social media accounts, as well as their business pages (and websites), could get your brokerage in trouble, if licensees are posting inaccurate information about listing (or defamatory comments about anyone).

Some people are under the impression that posting on Facebook to a restricted group of friends and acquaintances is private. In a legal sense, it is in fact “publishing” information. Ensure your team understands this:

  • Publishing information on any social media site to any group can lead to liability if the content is defamatory or controversial. 

NEGATIVE COMMENTS

Regular team training on how to respond to challenging comments or posts can also be useful. Defamation is an umbrella term used to describe any actions taken to hurt another person’s reputation. 

  • When a false statement is spoken, it’s slander. When it’s published, it’s libel. For it to be considered defamatory, the statement must be false. 

Anything posted on social media should be considered the “public domain.” Do not post anything that could be seen as negative towards anyone.

If something negative is posted about the licensee, suggest that the licensee:

  • Acknowledge the review with a brief and factual response, without admitting responsibility for anything.
  • Tell the reviewer what you’re going to do next.  For example:

Thank you, Max, for informing us about this. We will contact you asap to discuss, and we look forward to getting this rectified for you.”

  • Then contact the reviewer separately to try to resolve the issue.

ACCURATE INFORMATION WITHIN THE SCOPE OF EXPERTISE

The need for accuracy and staying within your scope of expertise extends to social media.

  • Be sure you provide correct answers when responding to questions and comments on social media
  • Check and double-check typos in the property description which could mislead prospective buyers
  • Do not comment on things outside the scope of a real estate professional (e.g., mortgages, neighborhood crime statistics, development possibilities, etc.)

IMAGES, VIDEO, AND PRIVACY

There have also been cases where lawsuit claims have been lodged for misuse of intellectual property (for example, using images owned by a third party). The accidental disclosure of confidential information (images of properties showing personal belongings or breaching privacy) can also be problematic.

  • Be sure you have the rights to an image that you post.
  • Check images, videos, and drone footage to be sure neighbor privacy has not been invaded.

3. Property Showings and Open Houses

STEERING

Steering is a method of discrimination in real estate. It happens when a real estate licensee influences a buyer or prospective tenant’s choice of housing because of their skin color, race, national origin, religion, gender, disability, or familial status.

Steering influences, guides or directs property buyers or renters to specific areas because of their particular characteristics. Here are some examples of behavior to avoid:

  • Only showing properties within a certain area, even if the client/buyer’s criteria indicate that other locations would be just as suitable.
  • Discouraging purchasers from buying into an apartment building or suburb because they are “different” from others who live there.
  • Suggesting buyers stick to neighborhoods where there are others with the same religious background/race/familial status.

Steering is not always as overt as this. Subtle hints like these could all cross the line:

  • An area or neighborhood “is not a great place to raise a family.” 
  • A house might be “too large” (when talking to a single woman). 
  • There are better schools in a certain area.

It’s best to: 

  • Show listings based on a buyer’s (or renter’s) criteria and don’t let your own biases influence what you show. This means showing buyers (or renters) what the options are and letting them make their own choice. 
  • Licensees should avoid giving any subjective information (opinions) to prospects. For example, saying things like “nice neighborhood,” “safe area,” or “close to a good school.” 
  • Recommend that prospects do their own due diligence and seek out independent, objective third-party information, for example: crime statistics, research on local schools, contacting the local police department, etc. 

4. Working with Prospects and Customer Service

A big part of a real estate licensee’s job is to answer questions about properties, but there’s a need for caution. Licensees should carefully consider every response, to ensure it’s factually correct and not misleading. 

SCOPE OF EXPERTISE

Stick to what you know as a real estate licensee. Although you want to be helpful to your clients and potential clients, always decline requests that are beyond your expertise.

One quick way to get embroiled in a lawsuit is to be involved in transactions far beyond your expertise or in unfamiliar geographic areas. 

  • Real estate licensees in general are not qualified to provide specifics for: tax issues, legal issues, confirmation of property lines, view maintenance, easements, materials used in a home, remodeling or expanding a property, what’s acceptable to a HOA, and any other estimations. Don’t be tempted to estimate the cost of anything.

Always suggest to the client that they hire a qualified professional, such as

  • Home Inspector, Surveyor, Termite or Pest Inspector, Qualified contractor that can provide expert advice and quotes, attorney, accountant, etc. 
  • The County Planning Department or other government bodies can be helpful for checking any potential building restrictions or compliance issues. 

Advise your client repeatedly in writing that you cannot give legal or tax advice. 

  • “If legal or tax advice is desired, consult a competent professional.”
  • Save all emails in your transaction file.
  • Offer to provide the client with the names of three or four local attorneys and/or accountants and refer the client to the local county bar association. (Note: do not provide a list of “preferred providers.” Give the client/prospect multiple options and let them choose.)
  • Do not research the law on a given subject for a client.

You may focus on residential real estate. Commercial real estate has its own set of best practices. If you’re offered a commercial listing, best to bring in another licensee experienced with commercial to avoid problems.

STAY WITHIN YOUR SCOPE OF DUTIES AS A LICENSEE

Never assume duties and responsibilities that you normally aren’t required to do (to try and be “helpful.”). When you do assume a particular responsibility or duty, you are responsible for the information you provide, whether you ‘re qualified to provide it or not. And you’re also responsible for the outcome of assuming those duties.

Avoid the temptation to research anything for a client or potential client.

For example, a real estate licensee in California has no legal duty to provide warnings, give advice or spot issues in legal or tax areas of a given transaction.   Real estate licensees should never get involved in legal or tax areas. The unauthorized practice of law may be illegal in your state and carry its own penalties.

  • Refer your client to a qualified professional. If you want to provide names, always provide a list of multiple providers to allow the client to make the choice.

HOMEOWNERS ASSOCIATIONS

When selling properties that are covered by a Homeowners Association. Disclosure of anything that may affect a purchaser’s decision to buy or not buy a property is essential. It’s also important to be very careful what you tell prospective buyers 

Don’t assume anything. For a regular standalone property, it might be quite reasonable to assume a property owner can repaint their picket fence, or even replace it with a different, more modern fence. But properties covered by a Homeowners Association can have very strict rules which prohibit such things. 

  • Never tell a prospective buyer that something is okay. Real estate licensees should recommend to all prospective buyers to do their own due diligence (their own research and to consult with an attorney). Potential buyers can find CC&Rs and other Association Regulations online for many communities.

Your Real Estate Errors and Omissions Insurance Can Help

All CRES members have access not only to Risk Management resources like this ClaimPrevent® Summary Series – but also to our expert Legal Services 7 days a week.

We’ve specialized in protecting real estate brokers like you for more than 25 years. As part of one of the largest insurance brokers in the world, we have unrivaled access to more real estate Errors & Omissions  and other insurance options than anyone else. Let us do the shopping for you – and find you the best protection for the best price.

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