April 11th, 2022 at 10:31 am
Agents should always exercise caution when placing ads in the MLS, flyers, and other marketing materials. When problems arise, buyers and buyers’ agents often refer back to your ads try to hold you accountable.
Although we generally have boilerplate disclaimers saying things like, “this information is deemed reliable but not guaranteed,” that language alone may not be enough to overcome a claim that you made a false or misleading statement.
Here are some advertising tips to consider:
- Don’t Give Assurances, Especially If Unintended (e.g. “completely renovated” or “brand-new appliances”): Avoid making overly broad or other descriptions that might be used against you at a later time when something turns out to be defective, damaged, or not as you had described. Some suggested alternative wording are “major renovations” (instead of “completely renovated”), or “newer kitchen appliances” (instead of “brand-new appliances”).
- Be Careful of Imitations: Things may not be what they seem. Constant innovations in construction and design give rise to new building materials and other things that may look like something else, e.g. marble, built-in bathroom mirror, etc. For example, even the current homeowner may not realize that the floors are not made of hardwood, but are vinyl plank, laminate, or something else. When in doubt, instead of “hardwood floors,” consider saying “hard/engineered wood.”
- Avoid Square Footage Measurements: Unfortunately, recent high-profile court rulings against real estate agents have kept square footage claims top of mind for buyers’ attorneys. Try your best not to overstate square footage measurements (and be mindful about unpermitted space).
- Make Sure Your Ads Match the Sales Contract: Let’s say, for example, that your MLS listing includes a description of the security system, but the buyer does not check the box in the RPA to include the security system. That can become a problem. The RPA does say that what’s to be included in or excluded from the sale is not based on what’s in the MLS, flyers, and marketing materials (see paragraph 9A). But instead of relying on that language, it’s safer to just clarify in the seller’s counter offer that the security system shall be excluded.
-A big thank you to the following agents and managers for suggesting this week’s legal tip: Gail Salem and Kathy King (Calabasas Office); and Todd Bloom, Cher Conner, Eric Kalisky, and Nicki Marcellino (La Jolla Office).
Copyright© 2022 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of April 11, 2022. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.
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