N.J.A.C. 11:5-6.1 — Advertising rules

(a) Unless otherwise set forth in this section, (b) through (o) below shall apply to all of advertising, including printed publications, radio or television broadcasts, electronic media, including email and the Internet, business stationery, business cards, business and legal forms and documents, signs, and billboards. 1. Individuals operating as sole proprietors and licensed as employing brokers shall conspicuously display on the exterior of their maintained place of business their name and the words "Licensed Real Estate Broker". 2. Firms licensed as corporate or partnership brokers shall conspicuously display on the exterior of their maintained place of business their regular business name and the name of the individual licensed as their broker of record and the words "Licensed Real Estate Broker". (b) The advertisement of an individual, partnership, firm, or corporate broker shall include their regular business name, which for the purposes of these rules, shall mean the name in which that licensee has on record with the Commission. The advertisement of a salesperson or a broker-salesperson shall include the name in which they are licensed and the regular business name of their affiliated broker. A salesperson may not indicate in an advertisement or otherwise that they are licensed as a broker-salesperson. The advertisements of a salesperson (referral) shall include the descriptive terms provided at (e) below. 1. Where an advertisement contains the name of a salesperson or a broker-salesperson, the regular business name of the affiliated broker shall be displayed in a more prominent manner than the name of the salesperson or broker-salesperson. 2. Where the webpage of a salesperson, a broker-salesperson, or a team of such licensees is not linked electronically to their broker's website, the webpage shall display the telephone number of the licensed brokerage office from which the advertising licensee(s) operate, which shall appear in a size consistent with the rest of the page. 3. Where the webpage of an individual or team is linked electronically to their broker's website, the broker's link should be clearly and prominently displayed on the advertising licensee(s) webpage and appear in a size consistent with the rest of the page. (c) An advertisement shall clearly indicate after the licensee's regular business name that the licensee is engaged in the brokerage business. Permissible language shall include, but not be limited to, "Realtor," "Realtist," "real estate broker," "broker," or "real estate agency." Prohibited language when used alone shall include "realty," "real estate," "land sales," and "land investments." This provision shall not apply when the word "agency" appears in the advertisement as part of the licensee's regular business name or when the licensee has legal or equitable ownership of the property. This provision does not apply to lawn signs placed on residential properties containing four or fewer units. (d) An advertisement containing a telephone number, email address, or website of an individual salesperson or broker-salesperson or a team of such licensees, shall also include the telephone number of the licensed brokerage office from which the advertising licensee(s) operate. 1. An advertisement shall only represent that the business of a licensee is conducted at a licensed main office or branch office of the broker through whom the advertising licensee is affiliated and shall not reference a home office. (e) The business card of a licensee shall clearly indicate the type of license they hold. The business card of any licensed salesperson (referral) shall indicate that this licensee is licensed with a real estate referral company by the use of the words "salesperson (referral)," "real estate salesperson licensed with a real estate referral company," or "referral associate." (f) An advertisement that refers to amounts of down payment, monthly payment, or carrying charges, or which indicates that a mortgage is obtainable (where the mortgage referred to is not already a lien against the premises advertised), shall contain the words "to a qualified buyer." (g) An advertisement that specifies the amount of down payment, monthly payment, carrying charges, taxes, or mortgage money obtainable shall contain qualifying words such as "approximate" or "estimated," which shall be clearly associated with the amounts provided. A broker shall maintain written proof of the validity of these statements in their files for 12 months from the date the advertisement containing such references last appeared in any publication. (h) With the exception of magazine or newspaper advertisements published under municipality headings, an advertisement for the sale, exchange, or rental of real property, or any interest therein, shall specify the municipality the property is located. (i) A licensee shall not advertise, use any form of application, or make any inquiry that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religion, creed, color, sex, affectional or sexual orientation, marital status, national origin, ancestry, or as to whether a person has a disability as that term is defined at N.J.A.C. 11:5-6.4(k). (j) Use of an insignia, emblem, logo, or trade name in any advertisement by a licensee or any group of licensees implying common ownership or management among licensees shall be prohibited, except in the case of duly licensed branch offices controlled by a single broker or licensee. Nothing in this section is intended to preclude the use, advertising, or display of any insignia, emblem, logo, or trade name of any bona fide trade association by any licensee. 1. A franchised licensee using the trade name of a franchisor in an advertisement shall include the licensee's regular business name in a manner reasonably calculated to attract the attention of the public. 2. A licensee, including the franchisor using the trade name of a franchisor in an advertisement, shall include the following statement or a substantially similar statement: "each office is independently owned and operated," in a manner reasonably calculated to attract the attention of the public. The statement does not need to appear in the following types of advertising: i. "For sale" signs located on the premises of specific properties for sale; ii. Small "spot" classified advertising appearing in a newspaper, magazine, or other publication. A "spot" advertisement is no more than one column wide and 20 lines long and describes up to two properties. A "line" is defined as a standard newspaper classified advertising line of the newspaper, magazine, or other publication in which the advertisement is published; iii. Business cards; and iv. An advertisement placed or distributed by an office, which are wholly owned by the franchisor and contains the office address and contains language that identifies the office as being wholly owned or the franchisor. 3. All individuals, firms, or corporations must be clearly identifiable to the public as the licensed brokers who are financially and otherwise responsible to the public for their brokerage activities. This section does not limit or inhibit the operation of branch offices as set forth at N.J.S.A. 45:15-12, nor does this section prevent the franchising of any group of licensees; provided such franchising or other association is consistent with the purpose of the Act, as expressed in this subchapter. (k) An advertisement by a licensee referring generally to membership in any multiple listing service operation shall specify the complete name of the listing service, except in the following types of advertising: 1. "For sale" signs and small "spot" classified advertising of any licensee as described in (j) above; 2. Business cards; 3. All business signs. (l) An advertisement that contains a home warranty offer shall comply with all Federal and State warranty legislation, including the New Home Warranty and Builder's Registration Act, N.J.S.A. 46:3B-1 et seq., and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. The advertisement shall clearly specify whether the warranty is by inspection or non-inspection of the premises, if the warranty is mandatory, and who is responsible for payment for the warranty. An advertisement shall not contain an offer for a warranty unless a warranty may be secured for the property being advertised. (m) Licensees may include offers of free, discounted, or other services or products in advertisements or promotional material, subject to the requirements and restrictions set forth in this chapter. 1. Examples of such products or services include, but are not limited to, free or subsidized appraisals, homeowners' warranties, property, radon, and pest inspections, surveys, mortgage fees, offers to pay other costs typically incurred by parties to real estate transactions, coupons offering discounts on commissions charged by brokerage firms, and cash payments. i. "Appraisal" as used in this subsection is given its technical meaning as a study and analysis by an appraiser authorized by law to perform appraisals of New Jersey real estate to ascertain fair market value by using a process in which all factors that would fix prices in the market place must be considered. A comparative market analysis or study (CMA) is not an appraisal, as described herein in this subparagraph. Any written CMA provided by a licensee to a consumer shall include a statement indicating that the CMA is not an appraisal and should not be considered the equivalent of an appraisal. The statement shall appear in print as large as the predominant size print in any writing reporting the results of the CMA. ii. Nothing in this subsection shall be construed as prohibiting the use of such words as "included" or "included in the purchase price" in reference to items included by the owner in the sale of any real property or interest therein. 2. No offering of free, discounted, or other services or products, including the offering of a free appraisal, shall be made by a real estate licensee in any advertisement or promotional material, or otherwise, where the promotion or offering involves a lottery, a contest, a game or a drawing, or the offering of a lot or parcel, or lots or parcels. 3. Whenever a licensee participates in a promotion or offering of free, discounted, or other services or products that confers upon the recipient a monetary benefit of greater than $ 1,000 retail, the licensee shall provide written disclosure to the recipient of the promotional material or offering. The disclosure shall state in a clear and conspicuous manner: i. Whether the consumer is required to perform any action to qualify to receive the free, discounted, or other services or products offered and, if so, what specific action(s) the consumer must perform in order to do so. For the purposes of this paragraph, a consumer's attendance at any listing presentation, informational session, or other meeting is considered to be an action by the consumer; ii. If the delivery of the offered services or products does not occur at the time that the disclosure is provided to the consumer, the date by which the services or products will be delivered to the consumer if the offer is accepted. If the delivery date is unknown to the licensee at the time the offer or promotion is extended to the consumer, the written disclosure to be provided by the licensee to the consumer shall so state; and iii. If a licensee has received, or will receive, compensation for participating in a promotion or offering of free, discounted, or other services or products, the disclosure shall also state the compensation the licensee has received or will receive. Should the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601 et seq., be applicable to the arrangement between the broker and the person paying the compensation to the broker, the disclosure shall be in the form and substance required by that Act. 4. The written disclosure referenced at (m)3 above shall be provided to consumers no later than when the promotion or offer is extended by the licensee to the consumer. i. For the purposes of this subsection, an offer or promotion is extended to a consumer when the free or discounted product or service is delivered to the consumer, or when written confirmation of the consumer's right to receive the free or discounted product or service at some future time is delivered to the consumer. 5. No licensee may utilize a marketing or promotional program that requires, as a condition of the consumer's receipt of a free or discounted product or service, the taking of any action by the consumer prior to the delivery of the disclosure(s) referenced at (m)3 above, other than an action necessary to accomplish the delivery of the disclosure to the consumer. (n) A licensee shall not publish an advertisement or place a sign that makes reference to the availability of a specific property exclusively listed for sale by another broker unless the licensee obtains the prior written consent of the broker. Such consent shall not be given or withheld by the listing broker without the knowledge of the owner. 1. For online listings disseminated by licensees other than the listing broker, the listing broker shall be deemed to have given consent where: i. The listing agreement sets forth the seller's authorization for the listing to be posted on the broker's website, on the website of a multiple listing service to which the broker belongs, or on the website of a third party to which the broker or multiple listing service submits listings; and ii. The website where the listing initially appears allows consumers unimpeded access to the listing information when viewed on a third-party website. (o) An advertisement shall not indicate that a property has been sold, or that a licensee participated in the sale of a property, until the closing has occurred where title to the property was transferred from the seller to the buyer. 1. For the purposes of this subsection, the term "advertisement" shall include communications to other licensees through notices submitted to a multiple listing service or otherwise. 2. After a contract prepared by a licensee emerges from Attorney Review or if a contract not subject to Attorney Review, but is fully executed and delivered to all parties, but before a closing occurs at which time title is transferred, any advertisement of the property that is the subject of the contract shall include the term "under contract." i. This paragraph shall not apply where a contract is cancelled and the seller authorizes the listing broker to renew efforts to market the property. (p) An advertisement by licensees may include a statement indicating that the advertiser is licensed by the Commission. An advertisement by a licensee that includes a reference to licensure by the Commission shall immediately thereafter include the following statement: "Licensure does not imply endorsement," which shall appear in a clear and conspicuous manner. 1. This subsection shall not apply to the display required to conspicuously appear on the exterior of every place of business maintained by the broker and include the name of the broker and, in the case of business entities licensed as brokers, the name of the individual authorized broker, and the words "Licensed Real Estate Broker," pursuant to N.J.S.A. 45:15-12. (q) An advertisement that includes a reference to a commission rate or compensation amount charged by the advertising licensee's brokerage firm or by one or more other brokerage firms shall include, in a clear and conspicuous manner, the following statement: "In New Jersey, broker compensation is fully negotiable and not set by law." (r) An advertisement shall not contain false, misleading, or deceptive claims or misrepresentations. Where an advertisement makes an express or implied claim that is likely to be misleading in the absence of certain qualifying information, such qualifying information shall appear in a clear and conspicuous manner. (s) A salesperson (referral) shall not include any content in any advertising that states or implies that they are authorized to engage in brokerage activity beyond that which they are permitted, pursuant to N.J.S.A. 45:15-3 or N.J.A.C. 11:5-6.10. (t) A salesperson (referral) shall include on all advertisements, except business cards, the following statement in a clear and conspicuous manner: "Services limited to referring prospects to broker."