Doing Business
The Law & You

Give your ads a safety check

BY ROBERT BRAND

When we hear “property condition disclosure lawsuit,” we generally think of leaky roofs and faulty foundations. There’s another kind of disclosure, however, that can lead to post-close challenges. Advertising the features of a home and neighborhood can entice buyers, but if a buyer later disputes the accuracy or fairness of those ads, problems can result.

Although those challenges rarely result in six-figure multiyear court battles, they can cost hundreds or thousands of dollars to resolve and can damage your reputation.

If you can remove, in advance, a buyer’s likelihood of misunderstanding or being misled by advertising language, you’ll reduce the likelihood of a post-close challenge.

When working on a draft real estate ad, ask yourself, Could someone reasonably challenge any claim made in the text?

Here are some tips to consider when reviewing your draft ad copy:

• Replace superlatives with neutral characterizations. Words like totally, completely, and fully, when combined with descriptions like remodeled or updated, can spell trouble. “Totally remodeled kitchen,” for example, can mean many things. Is everything in the kitchen new? What about the wiring, plumbing, and insulation? If you don’t know for sure (and it’s not enough to rely on the seller’s word), it’s safer to replace totally with a neutral modifier like beautifully or delightfully.
  
• Replace brand names with generic descriptions. Many brand-name products have taken on a generic context in our language, but that doesn’t mean it’s wise to use them in print. Brand names should be replaced with generic product descriptions, unless we know for certain that the feature is the specified brand name.
  
  For example, instead of advertising a “Jacuzzi in the backyard,” call it a spa. If the spa isn’t the Jacuzzi brand, the buyer could later claim that the listing agent misrepresented the feature and demand some form of remuneration. Other brand names commonly used in advertising include Corian countertops, Jenn-air range, and Sub-Zero refrigeration unit.
  
• Consider what expectations might be built into property descriptions. Common ad language such as “backyard is ready for pool” may imply to a prospective buyer that a pool can be easily installed for a standard price. If the area’s soil is known for difficulty in excavating, or if the lot is at a significant slope, such ad language could be challenged later. Similarly, “perfect opportunity for room additions” might imply that it won’t take an act of Congress to obtain building permits, as seems to be the case in some communities.
  
• Avoid vague language. “All appliances are brand-new” could be interpreted in a variety of ways. Does “all appliances” include the furnace and central vacuum system, or just the kitchen appliances? Does “brand-new” mean the appliances have never been used? Clarify the ad by removing potential arguments and substituting “newer kitchen appliances.”
  
• Describe the property, not the people. Take care not to practice inadvertent and unintentional discrimination in the wording of real estate advertising.
  
  When an ad describes the people who live in the neighborhood (or might live there in the future) rather than the physical property, some qualified buyers may believe they aren’t welcome to make an offer. In such cases, prospective buyers might allege that a rejected offer has more to do with who they are than with their financial capacity.
  
  The federal Fair Housing Act makes it unlawful to publish an ad for the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin. Some states and municipalities add other protected classes.
  
  Familial status references can be particularly troublesome. Use caution with phrases such as “great for empty nesters” or “great singles neighborhood.” Describing the property, not the potential buyers, eliminates the potential discriminatory tone. “Great for empty nesters” might become “cozy two-bedroom bungalow.” Instead of “great singles neighborhood,” consider “near shops, restaurants, and public transportation.”
  
  Remember, the only time it’s lawful to state that property is intended for older persons and not children is when you’ve received a written statement from the homeowners’ association stating that the property is qualified housing for older persons.
  
  Your careful attention to such details can reap significant dividends in money, time, and reputation.
  
  Brand is a licensed general contractor who works as a consultant on litigation avoidance strategies. He can be reached at 760/752-7754 or www.disclosureinfo.com.