The Do’s and Don’ts below should give real estate licensees a general understanding of what is required in connection of telemarketing. Violation of the rules could result in significant losses. Citations or fines by the government can be up to $100,000 for each violation or each day of a continuing violation (not to exceed $1,000,000 for any single act). When using auto-dialers, the monetary penalty shall not be less than $10,000 nor more than $100,000 per call.
In addition, an injured consumer may file a civil lawsuit in state court for a violation of the rules. A consumer may seek to recover actual monetary loss or $500 in damages for each violation, and an injunction prohibiting further violations. For violations of auto-dialers rules, the court may also award treble damages if the violator willfully or knowingly violated these rules. The statute of limitation for the violations is 4 years and the consumer may also recover his/her attorney’s fees. Lastly, often violations are pursued in civil court as class actions, because the volume of calls made by the licensee is high.
Do-Not Call List
Do: Make sure that the phone number you are calling is not on the do-not-call registry. The database registry can be accessed at https://telemarketing.donotcall.gov. There is a cost for this access. A licensee must also cross-check the do-not-call registry with his/her list of numbers at least once every 31 days and maintain records documenting this process.
Don’t: The prohibition is from making ‘sales calls to telephones registered on the do-not-call list. If the purpose of the call is to discuss with a FSBO a potential sale of the property to a buyer the agent represents, then the call is not a telephone solicitation, because the licensee is not encouraging the called party to purchase, rent or invest in property.
Do: Calls to registered numbers are allowed when they involve:
- Political calls.
- Charitable calls.
- Debt collection calls.
- Informational calls.
- Telephone survey calls.
Do: Call from a business that had a contact with the consumer (assume the licensee represented the buyer or seller in a prior transaction) for up to 18 months following the last transaction are allowed. The licensee cannot argue however, that as long as the buyer keeps the house or holds the loan, the relationship continues.
Don’t: An established business relationship with a particular company does not extend to affiliated companies unless the consumer would reasonably expect them to be included. There is also no established business relationship if either party previously terminated the relationship. The business relation ends when the transaction ends.
Do: Calls from a business where the consumer made an inquiry or submitted an application (e.g., rent application) are permitted for up to 3 months from the inquiry.
Don’t: Do not call the seller of an expired or canceled listing at their home or cell phone number to solicit real estate business, if that number is listed on the do-not-call registry. Real estate agents should generally avoid using information from the Multiple Listing Service to solicit expired listings, according to the model California MLS Rules, Rule 12.11.
Do: Calls made within a 50-mile radius by either individual business persons or small businesses with no more than five full time or part time employees (namely, assistants, receptionist) are permitted. Independent contracts who are real estate licensees are not included in this count. Those calls however, must be within State lines.
Don’t: Do not call a potential client who was referred to you whose number is on the do-not-call registry. Ask that person to call you first.
Do: A telephone call made to a place of business is allowed. The do-not-call rules only apply to calls made to residential and wireless telephone numbers. Beware of calling a business which is located within a residence, as that may not be exempt.
Don’t: Do not make prohibited calls without a signed written permission. The written agreement must state that a specific caller can contact the specified telephone number. See “Consent For Communications” (C.A.R. Form CFC).
Do: Calls made to people with personal relationship, which means any family member, friend, or acquaintance are allowed. Also, allowed are personal visits to the home, flyers and letters.
Do: Brokers should have established and implemented written procedures for
complying with the do-not-call rules and must train their licensee how to comply with such rules.
Do: Brokers should maintain and record a list of telephone numbers that cannot be contacted, and use a process to prevent telephone solicitations to any telephone number on your do-not-call list. If the brokers can show these precautions, then the licensee will not be held liable for calling someone on the do-not-call registry by mistake.
Don’t: Do not disconnect an unanswered telemarketing call before at least 15 seconds or four rings.
Do: When the licensee calls, the licensee must give: (1) his/her name; (2) the company’s name; and (3) the telephone number or address where the licensee may be contacted. The telephone number cannot be a 900 number or any other number for which charges exceed local or long distance charges.
Don’t: Do not block caller I.D. The caller I.D. information must include the name and number.
Do: For any residential telephone number who is not on the do-not-call registry but the person requests not to be called, that person’s name, if provided, and his/her telephone number must be placed on a company’s do-not-call list. Distribute the list every 30 days and maintain it for 5 years.
Don’t: When using auto-dialers (equipment that can generate and dial telephone numbers randomly or sequentially) do not use pre recorded messages to ‘mobile’ phones without consent. Prerecorded messages must be introduced by a live person and the person called must give their consent to hear the message.
Don’t: Use auto-dialed ‘text’ messages to ‘mobile’ phones without consent.
Do: Auto-dialed calls to landlines are permitted. But note that landline numbers can be routed to mobile phones and also some consumers provide cell numbers as home numbers.
Do: A consent must be signed by the person called, it must clearly authorize prerecorded or auto-dialed calls to that person and it must include the authorized telephone numbers. It must also include a clear and conspicuous disclosure that:
- “(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
- (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.”
Written consent can be through paper or electronic means, including website forms, a telephone keypress, or a recording of oral consent. Written consent to make pre recorded telephone calls is always required, even for clients with whom the licensee already has an established business relationship.
Do: Auto-dialed pre-recorded calls must also have an “opt-out” mechanism that allows the person receiving the calls to opt out of receiving additional calls immediately. The opt-out mechanism must be announced at the outset of the message and be available through the duration of the call.
Don’t: Under the rules, telemarketers using auto-dialers must ensure that they do not abandon more than 3% of all calls made over a 30-day period. A call is considered “abandoned” if it is not connected to a live sales representative within two seconds of the called person’s completed greeting.
Don’t: The federal rules generally prohibit the faxing of advertising materials absent the fax recipient’s prior permission. Moreover, any advertising fax must include an opt-out notice.
Don’t: The federal rules generally regulate commercial e-mail messages. A commercial e-mail message must contain, among other things, a clear and conspicuous identification that the message is an advertisement, an opt-out notice and method for opting out, and a valid physical postal address of the sender. The law also prohibits certain deceptive acts and practices involving e-mails.
Rinat B. Klier-Erlich
Zelms Erlich & Mack
Ms. Erlich is a professional liability defense attorney specializing in defending real estate professionals including, real estate brokers, escrow officers, appraisers, and design professionals. Graduate of Tel-Aviv University (BA 1992, magna cum laude), Whittier Law School (JD 1997, magna cum laude) and California State University (MA, Philosophy of Law 1998). In the last 18 years she has defended many professionals through trial and appeal. Ms. Erlich is a member of the Real Estate Executive Committee of the California State Bar and a member of the Legal Affairs Forum, California Association of Realtors. She is a Specialized Litigation Group chair and she is on the steering committees of several Defense Research Institute groups, Professional Liability Underwriters Society Southern California Chapter, and the Southern California Chapter of Claim and Litigation Management Alliance. Ms. Erlich is a recipient of Rising Star and Super Lawyers awards, and is an author and frequent speaker on professional liability topics. Ms. Erlich is a former Israeli Defense Force officer and a mother of 4 children.