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(a)For the purposes of this section, an "advertisement" is a written or oral statement or communication by or on behalf of a licensee which induces or attempts to induce a member of the public to use the services of the licensee or service provider. The term "advertisement" includes, but is not limited to, all publications, radio or television broadcasts, all electronic media including email, text messages, social networking websites, and the Internet, business stationery, business cards, signs and billboards. The provisions of this section apply to all advertisements by or on behalf of a licensee unless the context of a particular provision indicates that it is intended to apply to a specific form of advertisement. (b)The following information is not considered an advertisement or advertising: (1)a communication from a licensee to a member of the public after the member of the public agreed for the licensee to provide services, provided the first communication from the licensee contains the information required by this section; or (2)real estate information, including listings, available to the public on a licensee's website, extranet or similar site that is behind a firewall or similar filtering software which requires a password or registration to access that information. (c)An advertisement placed by a salesperson acting on behalf of another or as a principal must contain language that clearly and conspicuously identifies the name and license number of the salesperson's sponsoring broker. An advertisement placed by a broker must include the broker's license number in a clear and conspicuous manner. The commission shall consider language as clear and conspicuous if it is in at least the same size of type or print as the largest telephone number or contact information in the advertisement. The commission shall consider advertisements not to be in compliance with this subsection if the required language is in print or type so small that it cannot be easily read from the street or sidewalk. The requirements of this subsection regarding a brokers name applies to salespersons' advertisements on or after July 1, 2011. The requirements regarding the broker's license number applies to all advertisements on or after January 1, 2012. (d)For purposes of this section and §1101.652(b)(23) of the Act, deceptive or misleading advertising includes, but is not limited to, the following: (1)advertising that is inaccurate in any material fact or in any way misrepresents any property, terms, values, services, or policies; (2)advertising a property that is subject to an exclusive listing agreement without the permission of the listing broker and without disclosing the name of the listing broker unless the listing broker has expressly agreed to waive disclosure; (3)failing to remove an advertisement about a listed property within a reasonable time after closing or termination of a listing agreement, unless the status is included in the advertisement; (4)an advertisement by a salesperson which identifies the salesperson as a broker; or (5)advertising a property in a manner that creates a reasonable likelihood of confusion regarding the permitted use of the property. (e)A broker, individually or as the designated officer, manager or partner of a business entity licensed as a broker shall notify the commission in writing within 30 days after the broker, or a salesperson sponsored by the broker, starts or stops using a name in business other than the name in which the person is licensed. (f)An advertisement placed by a licensee must include a designation such as "agent," "broker" or a trade association name that serves clearly to identify the advertiser as a real estate agent. (g)Except as provided by subsection (h) of this section, a broker or salesperson may not place an advertisement that in any way: (1)implies that a salesperson is the person responsible for the operation of a real estate brokerage business; or (2)causes a member of the public to believe that a person not authorized to conduct real estate brokerage is personally engaged in real estate brokerage. (h)A corporation or limited liability company licensed as a real estate broker may do business in the name in which it was chartered or registered by the Office of the Secretary of State. (i)A real estate licensee placing an advertisement on the Internet, electronic bulletin board or the like must include on each page on which the licensee's advertisement appears any information required by this section and the disclosure relating to the advertiser's status as a broker or agent required by §1101.652(b)(23) of the Act. For purposes of this subsection, "page" means each html document of a website, which may include several screens of information that are viewed by scrolling down to the end of the document. (j)A real estate licensee placing an advertisement by using any electronic communication, including but not limited to email and email discussion groups, text messages, and social networking websites must include in the communication and in any attachment which is an advertisement the information required by this section and the disclosure relating to the advertiser's status as a broker or agent required by §1101.652(b)(23) of the Act. (k)An advertisement placed where it is likely to attract the attention of passing motorists or pedestrians must contain language that clearly and conspicuously identifies as a real estate broker or agent the person publishing the advertisement. This subsection does not apply to signs placed on real property listed for sale, rental or lease with the broker who has placed the sign provided the signs otherwise comply with this section and the Act. (l)An advertisement containing an offer to rebate to a party a portion of a licensee's commission must disclose that payment of the rebate is subject to the consent of the party the licensee represents in the transaction. If payment of the rebate is contingent upon a party's use of a selected service provider, the advertisement also must contain a disclosure that payment of the rebate is subject to restrictions. (m)If an advertisement offers, recommends or promotes the use of services of a real estate service provider other than the licensee and the licensee expects to receive compensation if a party uses those services, the advertisement must contain a disclosure that the licensee may receive compensation from the service provider. (n)A licensee may not advertise information regarding service providers that ranks such providers unless the ranking is based on disclosed objective criteria. (o)A licensee may not advertise that such licensee offers, sponsors, or conducts commission approved courses in conjunction with an approved school or other approved organization unless the licensee is approved by the Commission to offer such courses.
This agency hereby
certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on August 26, 2010
TRD-201005030 Loretta R. DeHay
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 10, 2010
For further information, please call: (512) 465-3926
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