Caution: Slippery Slope Ahead

 Cori Lamont  |    August 02, 2010

During the recent statewide young REALTORS® focus groups conducted by chairman-elect John Horning, a majority of participants said they marketed properties through the use of Facebook, LinkedIn and Twitter. They also stated that text messaging was the most common method of communication with the consumer. Some of the most popular reasons cited for texting included confirming a meeting time or scheduling and suggesting properties. 

For most of us, technology plays a huge part in both our social and business worlds. A concern for the real estate agent, however, is the increased role technology has played in legal matters. Over the course of the last few years, we have seen technology begin to play a bigger role in the court room. Attorneys now utilize text messages and postings on Facebook and other social networking sites as evidence in divorces, criminal trials and employment matters.

While it was no surprise that the majority of communication by young REALTORS® is accomplished by text message, it does raise the question: what, if any, are the legal consequences of texting for real estate licensees? The following discussion is an attempt to make you think before you text the consumer. 

In April 2009, Michael Antoniak wrote an article for REALTOR® Magazine that provided tips for the texting agent entitled, "Tech Watch: Reach Out and Text Someone." Below are some of those tips: 

  • Texting is not just for the young – it is done by all ages.
  • DO NOT text without permission – Ask clients if you may send them a text message.
  • Learn the lingo – See Webopedia www.webopedia for commonly used terms.
  • Be considerate – Do not fall for the addictive qualities that texting may produce. If you continuously respond immediately to clients, they will always expect it.
  • Set limits – Establish a schedule of when you will be available.

The entire article is located at http://news.wradev2/

When dealing with the ever-evolving world of technology there are always challenges. And while texting is easy, it does come with some potential legal risk. One noteworthy item to consider: currently there is no Wisconsin case law that addresses texting in a real estate transaction.

Here are a few things to consider before texting a consumer: 

Be careful where you text 

  1. Wisconsin’s new ban on texting or e-mailing while driving is effective December 2010. An individual caught sending an e-mail or text message while driving could be fined anywhere from $20 to $400. When Governor Doyle signed this into law in May, Wisconsin became the 25th state to enact such a ban. This ban will be included in Wis. Stat. §§ 346.89(3) and 346.95(11).

Be careful what you text 

  1. Keep it simple. Do not discuss confidential or transaction information. E.g., do not negotiate with your consumer via text.
  2. Advertising rules apply.
    • Wis. Admin. Code § RL 24.04(1) Licensees shall not advertise in a manner which is false, deceptive, or misleading.
    • The Code of Ethics applies to text messaging.
    • CAN-SPAM Laws
      1. Wireless Domain Name List: To help enforce its ban, the FCC required all wireless service providers to provide all Internet domain names used to transmit electronic messages to wireless devices. The FCC published this list on its website at Non-exempt senders of commercial e-mail messages are prohibited from sending them to any Internet domain name on this list without the recipient’s express prior authorization. These senders have 30 days from the date the domain name is posted on the FCC site to stop sending unauthorized commercial e-mail to Internet addresses containing the domain name. Wireless service providers must add new domain names to the FCC’s list within 30 days of activating them.

         FTC Rules/FCC Enforcement: The FCC can enforce the FTC’s restrictions on any commercial e-mail message sent to a non-wireless device, such as a desktop computer, if: 

        • The sender is a communications company (telephone, radio, paging, cable, or television company), or;
        • The message advertises or promotes a product or service of a communications company.
      2. The FTC’s rules require:
        • Identification – Unsolicited commercial e-mail sent to non-wireless accounts must be clearly identified as a solicitation or advertisement for products or services.
        • Offering a Way to Reject Future Messages – Commercial e-mail senders must provide easily-accessible, legitimate ways for recipients to reject future messages from that sender.
        • Return Address – All commercial e-mail, and e-mail considered transactional and relationship messages (about existing transactions), must contain legitimate return e-mail addresses, as well as the sender’s postal address.
        • Subject Lines – Commercial e-mail senders must use subject lines that are accurate. Using misleading or bogus subject lines to trick readers into opening messages is prohibited.
        • State Anti-Spam Laws: The CAN-SPAM Act is intended to preempt – or replace – state anti-spam laws, but states are allowed to enforce the parts of the CAN-SPAM Act restricting non-wireless SPAM. Also state laws prohibiting fraudulent or deceptive acts and computer crimes remain in effect.
      3. Resources:
  3. Do not discriminate. Fair Housing laws, along with all other state and federal laws, apply to text messages.

Record Retention 

  1. Wis. Admin. Code § RL 15.05 requires, "A broker shall retain for at least 3 years exact and complete copies of all listing contracts, offers to purchase, leases, closing statements, deposit receipts, cancelled checks, trust account records and other documents or correspondence received or prepared by the broker in connection with any transaction. The retention period shall run from the date of closing of the transaction or, if the transaction has not been consummated, from the date of listing. The broker shall make these records available for inspection and copying by the department. If the records are retained outside this state, the broker shall, upon request of the department, promptly send exact and complete copies to the department."
  2. The challenge with text messages is the ability to document the conversation, which may create difficulty in producing them at a later time. The following may be one of the ways to successfully print a text message.
    • Attempt to send it to your e-mail address by opening the message, forwarding it and entering your e-mail address rather than a phone number. The issue with this process may be proving who sent the original text since you are forwarding the text from your phone number.
    • Try connecting a data cable to a computer that may permit transfer of the messages to a computer, save them and print.
  3. Cell phone providers should have a record. However, most will only provide a detailed text message with a court order. It is also unclear the length of time the provider will keep the detailed message.
  4. Check your company policy regarding text messaging the consumer and retention of the communication.

Cori Lamont is Director of Brokerage Regulation and Licensing for the WRA.

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