THE INTERNET AS BOTH JECKEL AND HYDE:
Fifteen years ago the internet was a novelty felt by most to be best reserved for matchmaking dot-coms for the Lost and the Lovelorn. A few more enlightened thinkers were calling it one of the most powerful (and cheapest) up-and-coming tools in mass-marketing since television. But the greater visionaries saw it as something else entirely more dramatic: They saw it as a revolution in which local markets and the intermediaries between supply and demand would melt down and form instead into one massive international marketplace where all private and commercial communication once at the opposite ends of interaction poles would find each other, connect up immediately, directly and without those barriers. The economists called it “disintermediation,” i.e. a condition in which the buffers that at one time wedged tier-upon-tier of brokerage and sub-brokerage between supply and demand are vaporized. The “haves” and “wants” can communicate across the planet instantly, and do their deals directly and cut out all of the “no-value-added” middlemen. And so on came the e-revolution.
The result has been the bringing of as much chaos and damage to our lives as it has brought benefit. An example of the harm is the serious carnage that has been done to our once-highly-protected right of privacy, which fell victim to the internet’s somewhat anarchic “transparency credo”—that everything about you including your shoe size and pharmacy records should be publicly “outed”. That regrettably came about and rapidly proved itself as a form of tyranny disguised as a “freedom movement”. Now it is not the government playing “Big Brother” by looking into your personal affairs through normally confidential archives—it is the government AND every neighbor on your block freely googling, yelping or twittering your entire life. Worse, this “transparency” has been demonstrated again and again to give information and phishing accesses that has put thieves, murderers, rapists and child molesters into your life, your bank account and into your home who could never have found you or gotten there any other way. Under the “transparency policy” which puts everything about you into the open media, the internet has now become the primary feeding grounds enabling identity theft. Hackers can be “you” in less than 50 strokes.
It’s going to be a tricky balance and especially so when every day more information about you, your business and personal affairs, your children and even your ancestors and who you associate with is “dumped” into the system in the name of “transparency”. This used to be called by another name: “Voyeurism”. Those who wanted to gratuitously know all of this also had another name: “Peeping Toms”.
At some point the net-invasions will go too far and some form of internet privacy law will come about. The fact is, there would already be such laws if citizens knew just how pervasive the penetration of their lives has already been.
But there are more noble and socially and economically productive uses. Let’s turn to these.
THE INTERNET AS REAL ESTATE SCHITZOPHRENIC:
For the Good Guys in real estate, the internet has been a wonderful tool. Not only has it linked up product with sellers, buyers, customers, investors, and given us a very viable and almost instant due- diligence capability, it has also given us a limitless and truly effective method to tout ourselves and our wares far past the locales, people and budgets we would have been limited to if we still had to accomplish all of it with the flyers, phone calls and raw shoe leather of yesteryear. The industry is better for it.
For the Bad Guys in real estate--and very much like those thieves and rapists noted above whom the internet has given the means to raid and ransack your private life--the internet has also proven to be the best set of financial burglary and robbery tools since the ski mask and gun. Just as the scrupulous websites and people behind them have touted great products and good salespeople and honestly edified those who may log on about both, the web has also been used for the most monumental frauds—ones that, again, would not be possible by any other media. Those of us in the industry see the scams every day and we have to lament that the foul-ball pitch in many of the dirtiest websites is so slick that no honest site could compete. The Bad Guys can promise anything and the Good Guys are stuck with telling the truth. It’s currently an epidemic in real estate, due to the national economic crises that make desperate people easy meals for snakes.
Outside of lying and cheating, most of the time the Bad Guys do not even bother with the other silly little things required by law for what they purport to be selling or doing, like real estate, securities, mortgage or law licenses. It’s a great competitive edge against those of us who do have the right licenses for what we are doing or touting. Take a quick tour: Check out the 100,000+ internet “bidding services” which are engaged in professional real estate activities but have no real estate licenses, the online “get-rich-quick investment” clubs and systems that have no real estate or securities licenses, the “fix and flip” groups in which not one of the “repair people” has gotten nearer than 100 miles to a contractor’s license. And one we see most of all--the “guaranteed bank-modification” entities that all have “24-hour operators waiting for your call” and offer “an entire set of Ginsu knives if done in the next hour.” How can the Good Guys compete with THIS?
Actually, they can. Though not as conspicuous (unless one has so little going on in their social lives that they spend their Saturdays and Sundays browsing the courts for agency enforcement actions or the regulator’s sites for revocations and cease and desist orders—okay, I admit it), the real estate Bad Guys are not all getting away with it. One by one they are being taken out by regulators and law-enforcement agencies and for those others you may see still operating–their number simply has not come up yet. But it will, as the law-enforcement and regulatory push is really “on” to prosecute right now. The recent M.A.R.S. rules targeting loan modification rip-offs and other frauds from the FTC was only a recent and better-publicized example. There is a lot more happening. My law firm has been blasting the Bad Boys with lawsuits from ripped off clients, customers and, yes, fellow agents for decades. But the internet is so full of Bad Guys and their on-line or call-in “dog-and-pony shows” are getting so good that my greater worry has lately been for the Good Guys getting caught up in the regulatory and lawsuit dragnet either as a miscast Bad Guy or by reason of having an otherwise innocent association with the Bad Guys. The Good Guy’s risk is getting into crime with the Bad Guys without even knowing it. Spiffy websites with golden-tongued pitches fool them, too.
I would like to use the rest of this article, then, to identify some “red flags” for the real estate Good Guys out there. Those are the responsible, licensed people in real estate who are trying to get this country through this real estate and financial mess the right way, to make some honest money so they can feed their families, who want to be competent, want to serve the highest ethics of their industry and want to go to sleep at night knowing that no nice families, honest investors, widows or orphans have lost everything due to them. I will approach this by first noting how one can be innocent and yet liable for Bad Boy’s schemes which are not of their making. Second, I will note some common internet mistakes and liabilities even the honest and careful can commit. None of these are going to be exhaustive. There are more ways to get into hot water than listed here. Questions should be directed always to competent legal counsel.
THE LIABILITIES IN A NUTSHELL:
GENERAL LIABILITY: In all states, lying, cheating and stealing by any means is a crime. In all states, licensing, registration or the like for a specific privilege or profession and some products (like real estate or securities) has special requirements for abiding with law and licensure standards and for competency. In all states, there is civil suit liability for failures to comply with the foregoing law, rules and standards.
FOCUSING ON SPECIFICS: In all states evaluating and advising upon and then bidding for real property to sell either directly or ultimately to a pre-solicited third party--one other than one’s self or on a salary for an employer’s own use--for a fee or commission is likely “professional real estate activity” requiring a real estate license or some form of equivalent. In some states it would require also an auctioneers’ or law license. In all states, offering investment in a blind pool, a process, a system or an entity is likely “soliciting or selling a security” requiring a securities registration and exemption-request filing for the product and a securities or financial planning license. Investment clubs or paid “mentor systems” are almost always included. In almost all states, real property building, improvements or repair requires some kind of permit or licensure. Mortgage negotiations and modifications for a fee and not as incident to regular and normal professional real estate activity for a direct client or customer is the practice of mortgage brokering or law and requires licensure, accordingly. The scheme that states it has these people “on staff” but only associates them as consultants or independent contactors and not as directly salaried employees is NOT in compliance. The scheme that buys properties “for itself” under an already arranged mechanism where investors or buyers for the properties–identified then or not–are being sought is not “buying for itself” and is not entitled to licensure exemption. The sales license or associate broker who assists the scheme either as a member of the scheme entity or as an outside jobber is in violation of the licensure law which requires that all professional service be rendered under his or her brokerage and designated, manager or responsible broker (changes by state). The non-designated broker cannot set up “mini-brokerages” or “groups” on his own and act independently of the brokerage to which he or she is licensed. Neither can the securities salesperson or mortgage broker salesperson. Scheme entities, like LLCs or corporations, cannot advertise as an investment company or real estate brokerage without a separate brokerage license and a separate licensed broker under that entity. But it’s not just the liability for being unlicensed that counts. It’s also the garbage that is sold and the lies told and omissions made to do it.
THE FLEA-BITE RISKS OF “SLEEPING WITH DOGS”
All of the foregoing is a violation of licensure and in most cases is usually an extremely serious crime. All of it gets everyone sued. Not just he “perps,” but the innocent and perhaps even properly-licensed people who associate with the “perps” and are ignorant of their dirty deeds. Sometimes, ESPECIALLY the properly-licensed guys as they are usually the only ones who have any insurance (the bad Boys promptly fold up their schemes and disappear either to Bolivia or into a Chapter 7 leaving the Good Guys high and dry to take the full hit). Advising your client to engage, sell or buy with these entities or schemes or cooperating with them in any way can make you liable for aiding and abetting, conspiracy, or “furthering” their crimes and malpractices. Civil liability comes about for failing to do your due-diligence to determine that these kind of people are crooks and the connection to you does not have to be much more than a thread. Even referrals to manage the properties sold to the bilked buyers can get a Good Guy on the hook and obviously getting any profits from a crooked enterprise—whether as commissions, referral fees or “incentives” of some kind or being a “partner” with it somehow--drags the Good Guy deeply into the cesspool when the badges and the process-servers show up. Cross-linking to them on your website or even offering to “mentor” or “certify” under one of their “programs” is a guaranteed legal nightmare heading your way. Some “designations” offered (you pay for classes to get a certificate and become one of the program’s “approved counselors” or ”graduates”) are in fact merely unlawful investment marketing syndicates, pyramid schemes and other dubious spider webs which, in the end, make you a black widow and thus just one more “racketeer” by the association and “designation,” alone.
Yep. Mom and Dad said it right: “sleep with dogs and you get fleas.”
THE COMMON BOO-BOOS EVEN WHEN YOUR “HEART IS PURE”:
We all know about the problems with fibbing about our product or missing important material issues it or those around it may have. Every state has a lot of rules about that both in general law but particularly in licensure or permit law. Now we even have M.A.R.S, one of the clearest recent national law-enforcement statements about uses of the net. But there is more. There are special duties, especially magnified and sometimes esoteric liabilities when one is on the internet. Outside of the universal prohibitions against lying, stealing and cheating, the internet medium, itself, has additional law that applies, inclusive of federal and even international law.
Users of the internet for one’s self, one’s office, a project, system or a property in real state need to review the Association of Real Estate License Law Officials (ARELLO) standards for internet presence, specially adopted in some states and generally acknowledged as the proper format in almost all states and even in most of the commonwealth countries. One must remember that compliance with local internet rules is not enough since on the internet the transmission goes virtually worldwide. As will be noted, below, compliance may be required even in other jurisdictions if your internet is accessible in that jurisdiction. And that jurisdiction may have the power to charge you there, because you are “present” in it through the internet.
That's what I said! "Going global"--leaving your state of licensure and substantive law--which is precisely what you do in fact when you e-lectrify your real estate practice, carries with it both terrific market promises...and some truly awesome new legal multi-jurisdictional challenges and ramifications. They are the same hurdles that faced real estate and banking lawyers twenty years ago when the deregulated real estate and financial community they served left its traditional local forums and swept across state lines in search of business, accidently catapulting the services of its local professionals into states in which they were not licensed. As a more telling commentary: To date, no bar association has yet been capable of clearly identifying what constitutes pure "local practice." And if the lawyers can't figure it out for their own licensees, can the real estate profession figure it out for theirs?
Well, to its credit, the real estate authorities are giving it a mighty try right now and you need to know the ground rules that have been laid so far. A simple shorthand for them is found in the ARELLO "Internet Policy" statement now at www.arello.org . A clean statement for the better ARELLO version adopted by N.Y. for instance can be found at:
SOME RULES OF THUMB TO AVOID BEING “NET-NUKED”
Here are some risks and rules.
First, soliciting properties or one's real estate services on the internet IS seeking to practice the real estate profession EVERYWHERE THE INTERNET CAN REACH (including states and countries in which one is not licensed) unless one makes it clear in writing in the medium used that the solicitation is purely for properties found or services to be rendered in one's state(s) of licensing (and identifying that or those). A licensee has an affirmative duty to disclose that limitation in every single one of their solicitations and exchanges in the e-medium. In addition, if you are doing business with a person or entity coming from another state, do remember that the applicable law will almost always also be the law of that state, not just the state where the property is. TO COVER THESE THE AND FOLLOWING MATTERS, ASSURE THAT YOUR E-MEDIUM HAS A “NOTICES, DISCLOSURES, POLICY AND UNDERSTANDINGS” box that is accessible on each page of the website. A few “BOX” items: To avoid “doing business in the other state” (where you have no professional or business license or even a corporate registration to be there) you should consider clauses in the Notices and Disclosures box on your e-medium that not only points out the limits of your practice (“practice limited to states of licensure, which are currently X, Y, and Z”), but also assures that jurisdiction for any issues or acts is in your state of licensure (“solicitations, negotiations and any resulting agreements are deemed offered and accepted in state X, law to be applied to any matter regarding the contract or otherwise is the state of X, to which all subject matter and personal jurisdiction is exclusively conferred” ). Under the new MARS Rules, use at a minimum this disclosure in your “BOX” and on all e-mails and other transmissions:
“Required MARS Disclosure (Mortgage Assistance Relief Services) Federal Trade Commission Rules (16 C.F.R. Part 322): (XYZ Realty) is not associated with the government and our service is not approved by the government or your lender. Even if you make or accept an offer and use our service for Loan Mitigation or other negotiations or covered activities (Loan Modifications, Short Sales), the lender may still not agree to change the underlying loan or cooperate in any other matters or steps. You may at any time until we have earned our Loan Mitigation fees stop doing Loan Mitigation business with us, though that may not necessarily conclude all real estate services other than Loan Mitigation which you may want. Additional or future compensable real estate brokerages services other than Loan Mitigation may be rendered by us in agreement with you. As our client you may accept or reject the offer of Loan Mitigation we obtain from your lender or servicer, if any comes about. Whether you accept or reject the offer, you do not have to pay us a fee for our Loan Mitigation services unless the transaction closes. However, you may be obligated to pay us a commission for our real estate brokerage services which are not Loan Mitigation services if that is applicable by the terms of your agreements with us or a cooperating agent. If you stop paying your mortgage, you could lose your home, damage your credit rating, incur income taxes and be exposed to deficiency judgments in some states and on some loans and to uninsured property losses among other negative effects. Though we do not recommend it during a Loan Mitigation process with us, you are always free to communicate with the lender, directly. You should consult an attorney for consultation regarding these ramifications.”
Second, the licensee should avoid professional communication with anyone obtained through the e-medium from outside their state(s) of licensing unless the above notices and disclosures (not just M.A.R.S. but also the others about the situs of licensure, product, service) are first given in writing in the medium to which the respondent is responding. The licensee should avoid rendering professional work for clients or customers regarding a property outside of his state of licensing unless he associates a licensee from the state where the property is situate which complies with the laws of both his state of licensing and the state where the property is situate.
Third, the notices and disclosures above should be referenced on every page of the e-medium and in every communication to the respondent of any kind promoted by it, whether expressly or by a link to a separate notice and disclosure page.
Fourth, the licensee should fully disclose all material aspects of a listing and should update it within 72 hours of any change.
Fifth, a licensee should not advertise any other licensee's listing and should not in any event alter the other licensee's online display or information without express, advance written permission from that licensee. Licensees should avoid whenever possible displaying ANY listing information that is not directly controlled by them.
Sixth, ALL e-displays or e-communication to commence or further professional purposes (listing, general advertising of real estate product or services, newsgroup appearances, on-line chats, bulletin boards, voice over net [VON]) is considered "advertising" and will be tested for "truth-in-advertising." This means not only the initial publications, but also all follow-ups, as long as they originated from an e-solicitation or contact.
Seventh, local jurisdictions have authority over any media available in their jurisdiction if it appears to target or could reach or impact land, customers or clients in the jurisdiction. That means the laws of licensure and conduct and the reach of the local officials and courts to offenders will apply. The attempt to reach locals inside that jurisdiction will be deemed expressly admitted by the licensee unless the intent is expressly EXCLUDED or DISCLAIMED in the media making the contact or even if, notwithstanding the express exclusion or disclaimer, there is IN FACT any appreciable impact on property or people in that jurisdiction. For an example of at least part of that principle, see Arizona’s Commissioner’s Rule R4-28-502 (L). It provides that electronic real estate transmissions impacting Arizona residents (regardless of where the property is located) will be tested under the fairly astringent advertising statutes. California is the same. Something like this will now be found in most states.
Eighth, e-contracts or contracts that result from e-contact outside of the state of licensure may not be enforceable unless the state(s) in which both sides reside have laws which validate them. Arizona and California and others have tended to enforce them as long as there is a broker licensed in the state or the property and the origin, but half the states and a lot of foreign countries won't.
Ninth, absent written consent in advance to do otherwise, there is a duty and a liability to clients and even to casual e-customers to keep their e-communications and e-information with you confidential. You probably do not even have the right to plant "cookies" in a respondent's inquiry in many states. You need to be able to show serious anti-hacking and other e-programming steps having been undertaken to protect your site and to avoid invasion of the respondent's. Side inquiry: And where on earth does one get those at this point?
Tenth, there are some federal laws that are pretty tough on inappropriate cross-jurisdiction advertising or even just plain ANY advertising on the net. Its called Federal Mail Fraud and Wire Fraud: Mail fraud is defined in 18 U.S.C. ' 1341 as “devis[ing] or intending to devise any scheme or artifice to defraud, or ... obtaining money ... by means of false or fraudulent pretenses, representations, or promises ... [by] plac[ing] in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or tak[ing] or receiv[ing] therefrom, any such matter or thing, or knowingly caus[ing] to be delivered by mail ... any such matter or thing ....” Wire fraud is defined in 18 U.S.C. ' 1343 as the same conduct only by the use of "wire" and "sound" instead of mail and the audio-visual internet does both. There is usually little difficulty in proving that agents communicated with each other and principals and others by mail and telephone, in furtherance of the overall scheme that defrauded the claimant. Specific acts of using the mails or telephone need not be established. All Plaintiffs have to show is that the defendant was or should have been aware of the high probability of fraud and the reasonably foreseeable use of such means of communication in furtherance of the fraud. Ikuno v. Yip, 912 F.2d 306, 311 (9th Cir. 1990); United States v. McDonald, 576 F.2d 1350, 1358-60 (9th Cir. 1978). Even referring to, dealing with, communicating with or hyperlinking or forwarding a site that is a mail fraud or wire fraud can make you co-liable under the civil racketeering laws. 18 U.S.C. ' 1961(1) defines "racketeering activity" as including mail fraud (18 U.S.C. ' 1341) or wire fraud (18 U.S.C. ' 1343); Sun Sav., 825 F.2d at 195 . “It is not necessary that the mailing contain fraudulent statements; rather, it suffices legally if the transmissions advance the execution of the scheme.” Gas Reclamation, 659 F.Supp. at 513; but see Official Publications, 692 F.Supp. at 245-46 (contents of items mailed, how each was false or misleading, who made the statements, and when must be stated to allege mail fraud as predicate offense). As earlier mentioned the FTC’s M.A.R.S. Rules apply to all internet advertising, regardless of where it may go to be intended to go.
Eleventh, everyone with a web-presence should familiarize themselves with online copyright rules, including the "fair use" doctrine. See those generally at 17 U.S.C. 101 et seq. Generally, limited use of copyrighted materials (such as quoting excerpts or linking to an article, ) for purely educational, journalistic or scholarly purposes will typically pass muster. Using or incidentally reproducing logos of any kind including registered or trademarked symbols, trade names, designs or investing ones deceptively similar to those, could mean trouble without the express consent of the trademark, registration or copyright holder. It goes without saying here, but also do not falsely claim to have trademarked or registered designations you do not have and as to those you do have, always accredit with a trademark, copyright or registration mark, such as ™ or © or ®. One should, of course, always provide credit to the appropriate source or author with the link or quotation and one should never try to pass the work of others off as one's own - that is simply plagiarism, a form of intellectual property theft. General Rule: When using registered, trademarked or copyrighted material, visual, written or oral, in conjunction with profit-making e-commerce web sites, public domain right-to-use-lines are blurred and the safest course is to obtain written permission to use the materials. Often, the holder is more than happy to have its work disseminated (with due credit) to an even wider audience. This is a complicated area of law and the remedies for a failure to use it lawfully are huge, ranging from fines and imprisonment to damage claims, including claims to have all monies ever made with your site disgorged. All violations of criminal law are violations of licensure law. Thus, in this complex and dangerous area, before using or duplicating the work of another, one should consult with legal counsel.
Twelfth, there is even a federal rule about publishing on the internet someone’s likeness, property or other face or symbol not your own and even just mentioning their name. Unauthorized use of an individual’s likeness can give rise to common-law or statutory claims for invasion of privacy and violation of an individual’s right of publicity, civil claims under the Lanham Act (see below), and breach of contract claims, among others. The right of publicity is the right of every person to control the commercial use of his or her identity. See McCarthy, The Right of Privacy and Publicity. See also Restatement (Second) of Torts § 652(C) (“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”) The elements for such a cause of action are “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Superior Court, 198 Cal.Rptr. 342, 346 (1983). A successful plaintiff can recover traditional tort damages, including punitive damages. Even where a party impliedly consents to use of her image during an employment relationship, absent contractual provisions to the contrary, courts have held that termination of the employment relationship likewise terminates consent to use of the image. See for example, Colgate-Palmolive Co. v. Tullos, 219 F. 2d 617 (5th Cir. 1955); See also, Restatement (Second) of Torts § 892A, comment d (“The terms and reasonable implication of the consent given determine whether it includes the particular conduct….Unless the understanding is made clear by the express language, these questions of interpretation are normally for the trier of fact….Even when no restriction is specified the reasonable interpretation of the consent may limit it to acts at a reasonable time and place, or those reasonable in other respects.”) To the extent one claims a former employee was compensated for use of her image, when compensation ends, the right to use of the image impliedly ends. See. Restatement (Second) of Torts § 892A, above. An employer who continues to use such images may be forced to disgorge profits derived from such use, or may be liable for unpaid wages compensating such use.
Federal claims may also be brought under the Lanham Act (15 U.S.C. § 1125). Under this act, “Any person who . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof . . ., false or misleading description of fact, or false or misleading representation of fact, which– [ ] is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.” Such claims are common companions to successful invasion of privacy claims. See McCarthy, The Right of Privacy and Publicity.
AND THIS IS NOT EVEN THE BEGINNIING OF THE STORY!
The above barely opens the door to an explanation of the risks and responsibilities and, most of all, the issues. That is not surprising, since the internet itself it morphing into new uses and new abuses, daily. The bottom line: Beware the “Trojan Horse” of these liabilities at your e-commerce gate! When they are let in, they open up….and then starts the real trouble! So here is a short summary of what to do.
First, remember to avoid the “Three Bs”: The Bad Guys, Bum Deals and B.S. That way you can avoid the other “Two Bs,” Bail and Bankruptcy. Get too close to the “Bs” and you will get “stung” and, “africanized” by a lot of nasty penalties, it will prove fatal to them and you in the end. You are a Good Guy. Stay that way.
Second, the chances are at least 80%--with an internet law so changing and so complex—that you are not doing it right on the internet and that is especially if you have (or want) any dealings at all with out- of-state buyers, sellers, brokers or investors or product (and does not?). The law governing it is complex and you can be honest and be a Good Guy…and yet still get it wrong. Get a lawyer competent in both real estate and internet law to do a review of your site and all e-communication formats you use! Once again, you are a Good Guy and Good Guys do regular maintenance to assure their business will not break down and swerve out of control and hurt someone. Good Guys, included!
Third and last, don’t be afraid of the internet as a masterful commercial medium just because of a few entirely reasonable rules. The fact is that if you are not on the net in a form as “loud” as you can afford and as legal as you can get…well then, you just ain’t in business anymore, my friend!