Written for agents, read by sellers
Victoria’s page names the seller directly. Most of the other official guidance on property advertising is addressed to agents: NSW Fair Trading, for example, explains that the Australian Consumer Law applies to the conduct of real estate and property agents. The ACCC’s guidance is written for businesses, which it asks to be honest in their dealings and not to seek an unfair advantage through misleading claims.
The official pages gathered for this guide do not say how far the national law reaches an owner selling their own home outside any business, so this page does not say either. What they do show, clearly, is how regulators read a property advert. That is useful to anyone writing one.
Western Australia speaks to sellers too. Its advice to owners who use an agent is to keep the information they hand over factual and current, and it warns that a buyer who can prove a property was misrepresented in inaccurate advertising may be able to take legal action.
Six places an advert can mislead
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The words
The ACCC’s test is the impression left, not the wording you meant: “Any statement that creates a false impression about goods and services can be breaking the law.” Intent does not rescue it: “It makes no difference whether a business intends to mislead or not.”
The ACCC does set aside puffery, which it describes as wildly exaggerated, vague claims that no one could take seriously. Its example is a restaurant claiming the ‘best steaks on earth’, which is generally not considered misleading.
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The photos
Consumer Affairs Victoria tells agents plainly: “You should not use photographs that give the wrong impression of a property.” Western Australia makes false or misleading claims about a property illegal for an agent, whether they are spoken, written or in photographs.
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The promises about the future
Under section 4(1) of the Australian Consumer Law, a representation about a future matter made without reasonable grounds is taken to be misleading. NSW Fair Trading applies that to property for agents: predictions about trends in property values, or about returns on development or investment, that are untrue or cannot be substantiated would be misleading conduct. The ACCC adds that the one making the claim is responsible for showing they had reasonable grounds at the time.
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The fine print
A footnote cannot take back a headline. In the ACCC’s words: “Information in fine print and qualifications must not conflict with the overall message of the advertisement.”
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What the advert leaves out
Silence can mislead. The ACCC says failing to disclose information can be misleading, particularly where some information is given but important details a consumer should know are left out. NSW Fair Trading tells agents the same thing more briefly: “Misrepresentation can be about what is not said as well as what is said.”
NSW also lists, for agents, some facts it treats as material, meaning facts that would be important to a reasonable person deciding whether to go ahead. Clause 60 of its Regulation includes that the property has flooded from a natural weather event or bush fire in the last 5 years, and that the property is subject to significant health or safety risks. The duty is an agent’s: an agent must disclose any material fact of a kind the Regulation prescribes, if the agent knows it or reasonably ought to know it; the list shows what NSW considers worth a buyer knowing.
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The price
NSW’s steps for owners say to decide on a realistic price and to advertise it accurately. The ACCC asks for extra care with price, since it is an important factor in consumer decisions. The detailed underquoting rules are written for agents: NSW’s, for example, require agents to give accurate price estimates in listings and ban terms such as ‘offers over’ and price-plus signs. Job 04 covers setting the price itself.
In NSW, the contract comes before the advert
NSW asks for the contract of sale to be prepared before you can advertise the property. So in NSW the first job on this board waits on the second: job 02 sets out who may prepare that contract.
In Victoria the Section 32 statement is a legal document that must be factually accurate and complete; if it is wrong or incomplete, the buyer may be able to pull out of the sale or take legal action against the seller.
When a buyer says the advert misled them
The remedies sit with the buyer. In Western Australia, a buyer who can prove a property was misrepresented may be able to take legal action. In Victoria, a buyer may be able to withdraw or take legal action where the Section 32 statement is wrong. Nationally, anyone can report a false or misleading claim to the ACCC, which uses the reports in its education, compliance and enforcement work.
A dispute like that is a matter for a solicitor, who can read the advert against the contract and the state’s law.