Since the mid-2000s, texting has gained significant use in the professional world, including real estate. For most REALTORS®, technology provides the ability to be more efficient and responsive in a transaction. As we sit in 2012, most of us can agree texting can be a beautiful thing: it allows busy individuals the opportunity to connect quickly, encourages brevity, and is often the method of connection when using a phone or email is undesired or unavailable. However, like all beautiful things, technology has a dark side. Some argue that technology allows us to be too accessible, and for many of us, it occasionally provides the smallest of windows for sloppy behavior.
First let’s get the obvious general cautions out of the way. We all should be aware of what we’re texting, when we’re texting — both location as well as time of day — and who we’re texting; these are not mutually exclusive. The last scenario that any professional wants to experience is the looming, embarrassing “accidental text”: when a snarky, humorous or suggestive text that was meant for a friend is sent by mistake to a client or prospective customer instead. I mean, really, you don’t want to have that conversation … or try the other equally awkward route of ignoring the situation until asked and pretend that it didn’t occur.
The following are more specific cautions for real estate agents.
Ask before you text
To some, texting is much more personal than email. And not everyone has a phone that sends and receives texts easily and not everyone enjoys texting; it’s what the consumer wants — not what is always easy for the professional. Therefore, ask for permission from consumers before you text them.
And remember, once you have received permission, be aware of how quickly and what time of day you respond to or send that very first text, as these will set the standard for your entire texting relationship with that individual. If an agent sends a text at 10:40 p.m. for the very first time to the consumer, and the consumer texts back at 10:41 p.m., you are now looking at your phone thinking, “one minute … one minute … that’s all it took to respond at 10:41 p.m. on a Monday night.” At this moment, set down your phone and answer this question: what precedent are you setting by answering that text at that moment?
Watch what you’re texting
Avoid providing disclosures and/or negotiations via text. This is not limited to the conversations you have with consumers — this applies to the texts with other real estate agents and settlement service providers as well!
Texting should be utilized with consumers for communication, such as confirming showing times. Additionally, be aware of what you’re texting — remember the receiver cannot interpret your tone and may not use and/or understand abbreviations, especially those that agents use in transactions; for example, “RECR.” And if your phone utilizes auto-fill, you can have some interesting conversations — yes, “interesting” good and “interesting” very bad!
Keep track of the texts
Do you text just one of your sellers at one time and then both sellers at another? If you have five listings and have permission to text all sellers, let’s pretend there are two sellers for each listing — that’s a lot of texts to track! And that’s without other agents, buyers, settlement services providers, your broker, emails, phone calls, and oh, that personal life you allegedly have!
Effective December 2010, Wisconsin banned texting and emailing while driving
An individual caught sending an email or text message while driving could be fined anywhere from $20 to $400. This ban is included in Wis. Stat. §§ 346.89(3) and 346.95(11).
Careful how you market as texting is now part of the no-call list law
Effective April 17, 2012, Wis. Stat. § 100.52 (1) (i) was amended to include texting into the definition of “telephone solicitation.” Wis. Stat. § 100.52 (1) (i) now reads: “‘Telephone solicitation’ means the unsolicited initiation of a telephone conversation or text message for the purpose of encouraging the recipient of the telephone call or text message to purchase property, goods or services.” Therefore, the same residential customer no-call rules in Wisconsin now apply to text messages.
Also watch for changes to the Wisconsin Department of Agriculture Trade and Consumer Protection rule ATCP § 127 relating to direct marketing. The proposed rule change to ATCP § 127, Subchapter V, would make changes to parallel Wis. Stat. § 100.52 and address additional issues, such as prohibiting a telephone solicitation practice known as “spoofing.” According to the proposed order of DATCP for the hearing draft rule dated August 1, 2012, “spoofing” is the practice of “caller identification services to transmit or display misleading or inaccurate caller identification information.”
According to DATCP, two categories of direct marketing businesses will experience the biggest impact relating to these changes. One is the group that conducts both telephone and text solicitations that may be required to make slight changes to its current business practices. The second group is direct marketers that have been conducting text solicitation that were not currently registered as telephone solicitors, and due to the proposed changes, would be required to register with the Wisconsin No-Call list.
As a reminder, current Federal FCC rules prohibit sending unwanted text messages to a telephone number on the national Do Not Call list.
For more information, refer to the August 2005 Legal Update, “Federal Laws Impacting REALTOR® Practice,” at www.wra.org/LU0508 and the February 2006 Legal Update, “Real Estate Advertising,” at www.wra.org/LU0602.
Do you know how to back up your text messages?
Wis. Admin. Code § REEB 15.05 requires, “A broker shall retain for at least 3 years exact and complete copies of all listing contracts, offers to purchase, leases, closing statements, deposit receipts, cancelled checks, trust account records and other documents or correspondence received or prepared by the broker in connection with any transaction. The retention period shall run from the date of closing of the transaction or, if the transaction has not been consummated, from the date of listing. The broker shall make these records available for inspection and copying by the department. If the records are retained outside this state, the broker shall, upon request of the department, promptly send exact and complete copies to the department.”
- Texts will not remain forever on the majority of phones. Just like voice mails, texts will delete off of a phone eventually, so you must be proactive and take steps to separately save the text messages.
- The following may be some of the ways to successfully print a text message:
- Email: open the text and forward it, entering your email address rather than a phone number. The problem with this method may be proving who sent the original text since you are forwarding the text from your phone number.
- Computer: connect a data cable to a computer that permits the transfer of the messages to a computer, save them, and print.
- Mobile apps: Apps such as PhoneView for iPhone users or TouchCopy for Android allow backup of every text sent and received into your Gmail account; each resolution will depend on your brand of phone. And I am sure this will continue to evolve, making life just that much easier.
- Cell phone providers should have text records. However, most will only provide a detailed text message with a court order. It is also unclear the length of time the provider will keep the detailed message.
Check your company policy
If you have not already been made aware or have asked about the current company policy regarding texting and retention of the communication, you should follow up with your broker. Fore more information on potential legal consequences of texting, see the August 2012 Wisconsin Real Estate Magazine article, “Caution: Slippery Slope Ahead” online at www.wra.org/WREM/Aug10/SlipperySlope.
Text messaging is a beautiful thing, right?
Cori Lamont is Director of Brokerage Regulation and Licensing for the WRA.