These Guidelines have been issued by the Director General and apply to all agents licensed under the Property, Stock and Business Agents Act 2002. They are intended to assist agents when publishing photographic advertisements.
Photographs are an influential selling tool in the home property market whether in print or on the internet. Photographs are used by agents in property advertisements, in addition to descriptive words and phrases, to help create a picture in the mind of the prospective buyer. A beautiful photograph of a house, its unique features, its views, and its surrounding local area can immediately draw in many potential buyers.
It is often said that 'a picture is worth a thousand words'. Real estate agents should be mindful when using photographs in a real estate advertising campaign as visual communication must ensure the message is not misleading.
Consequently, these guidelines have been developed by NSW Fair Trading to assist agents in publishing acceptable photographic advertisements which convey accurate information for the property buyer and leave the buyer with the 'right impression'.
As the real estate industry becomes more competitive more photographs are used to advertise the sale of a house. Often several photographs of indoor and outdoor settings are used in the one advertisement which may leave some consumers uncertain or unclear about the pictures they see in the photographs. For example, where a single photograph in the property section of a local newspaper featuring a magnificent beach view is used, it may be unclear to consumers whether this view can be seen from the property being offered for sale or whether the beach is nearby. Without any labelling on the photographs themselves consumers will be left with uncertainty about the image they see.
Section 51 of the Property, Stock and Business Agents Act 2002 forbids a licensee in the course of carrying on their business from publishing or causing others to publish any statement that:
A statement is published if it is:
Penalties apply for breaches of the provision of section 51 of the Property, Stock and Business Agents Act 2002. The maximum penalty is 200 penalty units – presently $22,000.
Section 51 of the Property, Stock and Business Agents Act 2002 applies in addition to other legislation that relates to misleading or deceptive conduct and false representations, including the Australian Consumer Law.
Section 18 of the Australian Consumer Law prohibits a person, in trade or commerce, from engaging in misleading or deceptive conduct.
In addition, section 30 of the Australian Consumer Law applies the general rules about misleading conduct to the specific conditions concerning interests in land, including the sale or grant, or the possible grant of an interest in land, the promotion by any means of the sale or grant of an interest in land.
Section 30 provides that a person, in trade or commerce, must not make a false or misleading representation about
Penalties apply for breaches of section 30 of the Australian Consumer Law. The maximum penalty in the case of a person is $220,000 and for a company is $1.1 million.
A statement is taken to be false or misleading if it has a reasonable tendency to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement indicates that the state of affairs does exist.
Misleading or deceptive conduct is a concept that has been broadly interpreted judicially. Conduct is misleading or deceptive if it is likely to lead a reasonable or ordinary member of the class of persons to whom it is directed into error. Misleading conduct can include acts of silence or omission. Conduct can be misleading even if the agent does not actually make any representations. It is not relevant whether the agent actually intended to mislead anyone to establish liability. What is relevant is the overall impression created by the conduct and its actual or likely effect on reasonable or ordinary members of the target audience (prospective buyers). Any type of conduct related to the photographic advertising of real estate that could give a consumer the wrong impression may potentially breach the Property, Stock and Business Agents Act 2002 and the Fair Trading Act 1987.
Agents must ensure that any claims made about any property or land characteristics in any photographic representations and advertising are accurate and could not give prospective buyers the wrong impression. Statements made in conjunction with photographs of the views and facilities available in a local area must not be false or misleading.
Examples of undesirable photographic property advertisements in newspapers, real estate publications and on the internet can include:
The photographs and wordings in the above examples are likely to mislead, give the wrong representation or be unclear to any person relying on the photographs to give them an image of the property being offered for sale.
The 'touching up' of photographs that appear on internet websites which promote the sale of real estate is also of concern. Photographs of properties which have been touched up to hide undesirable characteristics or enhance other features could mislead consumers. Accordingly, agents must ensure that photographs are not used in a manner that may lead to implied representations that are false or involve misleading or deceptive conduct. Real estate agents must not:
The modifications to photographs described in the above examples are likely to be misleading or deceptive.
Accurate labelling of photographs used in property advertisements could eliminate any doubt in a consumer’s mind about what they actually see in a photograph.
Some examples of acceptable practices in photographic advertisements which Fair Trading suggests agents use are:
Note: The term 'location shot' should only refer to photographs of facilities and services within the immediate surrounding area of the property being offered for sale, such as, a park, playground, beach, shopping village, café scene or other facility. Generally, the scene in the photograph labelled as a 'location shot' cannot be seen from the property being offered for sale, and was not taken on the property itself. Therefore, the most accurate description to print on the photograph would be 'location shot'.
It is suggested that any photographs taken on the property itself to be used in real estate advertising do not require labelling. Accordingly, only photographs not taken on the property itself, but within the immediate surrounding area, will require the labelling 'location shot'.
Photographs of the property (outside and inside photographs) that is being offered for sale which are for illustration purposes must not be misleading. The touching up of photographs would be considered misleading.
Further, the Australian Competition and Consumer Commission’s guideline 'Fair and square - A guide to the Trade Practices Act for the real estate industry' advises that vague statements about the location of land are likely to be misleading under the Trade Practices Act 1974. Only factual information about the location of land or property should be used.
The following examples show what wording would also be acceptable to use in the description of a property to supplement the photograph/s:
All efforts should be made by agents and their employees to provide an accurate picture or impression in the consumer’s mind of the features of the property being offered for sale.
Agents cannot avoid liability simply by claiming that the buyer or consumer should have made reasonable enquiries and checked the information provided. Agents are responsible for their words and actions in their dealings with their clients.