There are various federal, Florida and local laws and regulations concerning advertising the sale of residential property. In general, such laws and regulations prohibit false and misleading advertising and marketing practices and, in certain circumstances, require certain disclosures and disclaimers on materials used in connection with the sale and lease of residential property. In addition, advertising and marketing raises questions of copyright and trademarks. Advertising and marketing materials include not only brochures and other written materials, but also models, depictions, renderings, pictures, videos, Web pages, and social media, all of which are representations which can form the basis of claims for misrepresentation and fraud.
The primary source of regulation regarding advertising residential property emanates from the Fair Housing Act as well as the Fair Housing Advertising guidelines promulgated by the United States Department of Housing and Urban Development. The guidelines set forth standards that advertisers should follow to avoid violating the Fair Housing Act, such as the use of words, phrases and visual aids as well as the selective use of advertising media and content. In addition to the Fair Housing Act, the Interstate Land Sales Full Disclosure Act includes required disclosures that must be included on printed material and literature used in connection with the sale or lease of certain property as well as advertising guidelines for developers regarding the sale of property which provide a non-exclusive list of advertising practices which are considered misleading and are used to evaluate advertising and marketing materials.
In addition to federal laws, Florida has its own advertising laws, regulations and guidelines. The Florida laws (a) prohibit false and misleading advertising, (b) require certain disclosures and disclaimers, including required disclosures in condominium advertising, advertising relating to vacation and timeshare sales, and advertising relating to the sale of mobile home park lots, (c) include guidelines with regarding to advertising subdivided lands, and (d) set forth advertising requirements for licensed brokers and contractors. Local county codes also require disclosures with respect to the sale of certain residential properties.
Marketing and advertising the sale of Florida property in other states must also comply with the laws of the states in which the advertising is being made. In addition, advertising in other states and national advertising campaigns raise issues relating to out-of-state registration requirements and other state’s laws relating to the sale of out-of-state property. Because the Internet offers national and international exposure, special considerations exist with respect to any marketing or advertisement content that is posted on the Internet.
The failure to comply with laws and regulations concerning advertising and marketing practices may give rise to private claims including claims for fraud, misrepresentation, unfair trade practices, and statutory claims. In addition, enforcement actions may be brought by governmental authorities and penalties may be imposed for failure to comply with advertising laws and regulations. Florida law also provides that any person who disseminates false or misleading information for the purpose of offering for sale or for the purpose of inducing or causing any other person to purchase or acquire an interest in real estate located in Florida is guilty of a misdemeanor of the second degree.