Q: I am confused as to which words I can or cannot use in advertising property for sale. What words are acceptable or unacceptable?
A: There are some terms that are used by real estate professionals that have resulted in numerous transaction problems, claims and lawsuits. Even though these terms are frequently used in other forms of advertising, they have been proven to create significant potential liability for real estate professionals.
As society has changed, the words that can safely be used by REALTORS® have also changed. There is a growing recognition that words previously “acceptable” to federal regulators may no longer be acceptable in California. Terminology which shows a preference for, or a bias against, anyone in any of the 22 protected bases used by the California Department of Fair Employment & Housing can lead to a claim of discrimination.
See Weekly Practice Tip: “Overview of new DFEH Fair Housing Regulations” (02/14/2020)
In the current push for inclusion and diversity, greater sensitivity is strongly recommended in how real estate is described. This Tip will focus on terms that should be avoided.
I. TERMS THAT HAVE CAUSED REAL ESTATE PROFESSIONALS TO PAY UNHAPPY BUYERS
A. TRADITIONAL TROUBLEMAKERS: House Selling for Dummies (3rd Edition) recommends that anyone marketing real property should avoid the following list of 10 terms (courtesy of Vickie Naidorf).
- All (variations are Completely, Entirely and Totally): These terms are often used to describe the extent of a remodel or repair. The problem is that absolutely everything must be remodeled or repaired to use this broad term and, if any one thing was not (such as the foundation), then the advertisement is false.
- Custom-Built: This term can only be used if the structure is truly unique; if there are other comparably designed homes, then this is a false statement.
- Fixed: This term implies a permanent solution but most problems are “repaired” or “remediated;” there are no guarantees that the problem will not reoccur.
- Never/Always: It only takes one exception to make this type of terminology false.
- New: Unless the product has never been used, do not say it is “new” and avoid “newer” & “newish.”
- Panoramic: Unless the view is 360° around, it could be expansive but it is not panoramic.
- People: Do not describe or reference anyone, whether it is the Seller, a Buyer or the neighborhood.
- Quiet: Sound levels are quite subjective and unless you know there are no noises at the Property 24 hours a day, and every day of the year, it is a dangerous term to use.
- Safe/Security: Even gated communities with a patrol force cannot completely prevent crime. Since there are no guarantees, these terms should not be used.
- Square Footage: Since there are so often size discrepancies, use of any precise number, such as 2,345 sq. feet, implies that that is the true size. Regardless of any disclaimers, the best practice is to use the term “approximate.” (or “approx..”), round down (2,300 sq. feet), and disclaim that you have not verified or investigated information from third parties, and cite the source. Best practice is to use a standard Square Footage & Lot Size Disclosure Advisory, such as the CAR SFLS, the PRDS SFLA, or the SFAR form.
B. ADDITIONAL TROUBLEMAKERS TO AVOID: These are phrases that have led to many nasty claims that the advertisements were false and Agents made misrepresentations that the Buyers relied upon:
- Highest/Best Materials/Workmanship: Others may use such puffery but Agents do not know if these representations are factually accurate and thus should be avoided.
- Perfect for/Easy to ____[fill in the blank]_____: If there are any difficulties, delays or extra costs involved, then the level of perfection and ease is not present and the Agent has potential liability.
- Buildable Lot/Build Your Dream Home: All too often what the Buyer wants to build is not feasible and the Agent faces potential liability.
II. TERMS THAT ARE POTENTIALLY DISCRIMINATORY
A. NAR RECOMMENDS AVOIDING PHRASES THAT IMPLY OR STATE THAT A PARTICULAR PROPERTY IS “PERFECT” FOR A TYPE OF PERSON.
- Do Not Use: Empty Nesters Singles Families Married Couples In-Laws
B. NAR RECOMMENDS AVOIDING PHRASES THAT DESCRIBE A NEIGHBORHOOD AS BEING ANY OF THE FOLLOWING:
- Kid Friendly Primarily Hispanic Exclusive Private Integrated
C. ADULT or SENIOR HOUSING: This terminology is only okay if the facility specifically meets the needs of seniors, has at least 35 dwelling units, and at least one member of the household is 55 years of age or older.
III. TERMINOLOGY THAT IS NOW QUESTIONABLE: Avoid these terms as much as possible:
- Short walk to Family Room Mother-in-Law Unit/Suite Bachelor Apartment Master Bath Master Bedroom You Can See Forever
NOTE: Some companies have policies against using any or all of these words in advertisements, so check with your manager for company policy in use of these words.
DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright 2020 Broker Risk Management 09/04/20