Agents must ensure when using photographs in a real estate advertising campaign that the message is not misleading.
This information has been developed to assist agents in publishing acceptable photographic advertisements of property that convey accurate information for the property buyer and leave the buyer with the 'right impression'. Consumers usually rely on the internet and printed advertising for information, including the photographs agents use to advertise property sales. Photographs in advertisements can leave consumers uncertain about the actual state of the property, unless there is sufficient information for the customer to understand the content of the photograph.
For example, where an agent uses a photograph featuring a magnificent beach view, it may be unclear to consumers whether this view can be seen from the property for sale or if the beach is simply nearby. Without any labelling on the photographs, consumers may be misled about the image they see.
The 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 in relation to the sale of land.
Section 30 provides that a person, in trade or commerce, must not make a false or misleading representation about:
- the nature of the interest in the land
- the price payable for the land
- the location of the land
- the characteristics of the land
- the use to which the land is capable of being put or may lawfully be put, or
- the existence or availability of facilities associated with the land.
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.
Under section 53 of the Property and Stock Agents Act 2002, a person may claim damages or any other compensation in respect of any misrepresentation or concealment in the sale or purchase of a property, whether or not they have already entered into an agency agreement.
False, misleading or deceptive advertising
A representation can be taken to be false or misleading if it leads to a reasonable belief in the existence of a state of affairs that does not in fact exist.
Representations can also be misleading by acts of silence or omission.
Agents must ensure that any claims made about any property or land characteristics in any photographic representations and advertising are accurate and do not give prospective buyers the wrong impression. Statements made in conjunction with photographs of the views and facilities available in a local area also must not be false or misleading.
Examples of undesirable photographic property advertisements in newspapers, real estate publications and on the internet can include a photograph of:
- a water view or scenery, placed next to a photograph of a house, which makes it difficult to tell whether the water view or scenery can be seen from the house or whether the photograph is a 'location shot'
- cafes and shops with the wording 'minutes to this!' or ‘stroll to the shops’ typed above the photograph, which does not give a clear indication of the distance from the property to the cafes and shops shown in the photograph
- the property which was taken a long time ago and is no longer an accurate portrayal of the property, as it has deteriorated or changed significantly since the photograph was taken
- a park and river with the wording 'opposite home' where, in fact, this view cannot be seen from the property
- a beach with the wording '90 seconds walk to water’s edge, not actual view' printed at the bottom of the photograph, which needs more clarification
The photographs and wordings in the above examples are likely to mislead, give the wrong impression or be unclear to any person relying on the photographs to decide if they are interested in the property being offered for sale.
Photographs of properties which have been touched up to hide undesirable characteristics or enhance other features could also mislead consumers. Accordingly, agents must ensure that photographs are not used in a manner that may lead to implied representations that are false, misleading or deceptive.
Agents must not:
- modify or allow photographs of properties to be modified so that the images no longer truthfully and fairly represent that property
- change the appearance of a property by digitally removing or adding features (adjusting the lighting effects only to compensate for poor lighting may be acceptable)
- zoom in on a photograph of a view from the property to make that view appear closer.
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 and Stock Agents Act 2002, the Fair Trading Act 1987 and the Australian Consumer Law.
The use of labelling to clarify meaning
Property advertisements should use photographs that are accurately labelled to prevent consumer doubt.
Some examples of acceptable practices in photographic advertisements include:
- a photograph of a water view, parkland or bushland which has been taken on the property being offered for sale, which would not require any labelling
- a photograph of a water view, parkland or bushland which has not been taken on the property being offered for sale, but is within the immediate area, which should have printed on the photograph 'location shot'
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.
Any photographs taken on the property itself that are used to advertise the property 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'.
The Australian Competition and Consumer Commission’s guidelines 'Fair and square – A guide to the Trade Practices Act for the real estate industry' advise 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 other wording that would also be acceptable to use in the description of a property to supplement the photograph(s):
- '2 km to beach' is preferable to 'close to beach', and
- 'village shops within 3 km' is preferable to 'within walking distance of shops'.
Agents and their employees should make every effort to provide consumers with an accurate depiction 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. It is important to note that agents are responsible for any representations they make in dealing with their clients.