Naturally a diligent real estate agent will want to present a client’s property to the market in the best possible way.
This only makes sense: it attracts more inspections, captures more attention, and will likely result in a better return for the seller.
To that end, most agents will hire professional real estate photographers to compile the photos of the property for sale so that it can be advertised.
Inevitably along the way, those photos will be edited to some degree in post-production to ensure the property looks as good as it can.
Which begs this question: how much photoshop is too much when it comes to property marketing, and what are the risks if you cross the line?
Understanding Misleading or Deceptive Conduct
The basic issue we’re concerned about when it comes to editing photos of a property is the risk that you, as the agent who presented the photos, will be accused of misleading or deceptive conduct. Your client, the seller, might also get dragged along too.
If such a claim succeeds and any kind of damage came about as a result, you could be looking at a messy dispute.
The basic parts of misleading or deceptive conduct are:
That you engaged in certain conduct (generally speaking a representation of some kind – such as a photo) in trade or commerce (ie – in your role as a professional agent);
The representation was misleading or deceptive, or likely to mislead or deceive;
A person relied on the representation;
The person has suffered loss as a result.
We’re not going to write an essay here on misleading or deceptive conduct, other than to say that this is the main area to be concerned about.
With that in mind, what are going to be the key items to consider when it comes to presenting a property in its best light using photographs?
Some Typical Edits that Agents or Photographers Make to Property Photographs
Almost every photo put up for a property sale has been edited in some way.
In truth, even the photos that you take with your phone are usually edited in some way,
although you don’t necessarily see that process going on – it’s automatic.
But photographers have several common approaches when it comes to editing property photos. Generally speaking, these are designed to try and present a property the best way possible.
Common edits include:
Lighting – increasing exposure to make a property seem brighter and more airy;
Softening – by softening a photo, flaws in flooring, walls or other areas can be diminished;
Wide angles – wider angle lenses can make spaces seem larger than they actually are;
Lawn colour – photos taken in winter, for example, might show a yellow or brown lawn. It’s common to green up the lawn in post-editing;
Sky replacement – if photos were taken on a dull or grey day, a photographer can easily switch out the sky with a more pleasant one;
Object removal – debris or temporary items in the property might be edited out completely from time to time; and
Retouching – painting up rusty spots on roofs, marks on external walls or flaking paint can make a property seem more appealing.
Of course, when combined these and other approaches can make a property seem far nicer and in better condition than it actually is.
But is this really a problem, and if it is then where should a prudent agent draw the line?
A Safe Rule of Thumb
As a general principle, the more edits you make the greater chance that you will cross the line into misrepresentation.
So the safest way to proceed is to ask your photographer to have a light touch only on the photos, to ensure that while they present the property in a positive way the manipulation of the photograph isn’t so significant that it becomes entirely unrealistic.
Some agents have suggested the threshold is that they are “allowed to make a home look as good as it would on its best day”.
This is probably a safe way of looking at things, provided you don’t take it too far. So, removing the old rusty car from the photo might be OK, since it is a temporary item and wouldn’t be there for a new owner.
However, removing a powerline entirely from a photograph or creating an entirely fictitious set of pleasant landscaping surrounds is probably going to be running a significant risk of crossing the line.
Does It Matter?
Generally speaking, most people don’t buy a property unless they also physically inspect it.
So if the person is going to get a first hand look at the property, does it really matter if the photos present an overly optimistic picture?
Perhaps. A personal inspection might help you argue that they couldn’t have relied on your photographs given that they saw the place with their own two eyes and had every opportunity to spot any discrepancies.
But there are a number of times this might not be true.
First, there is a significant increase of purchases occurring after only a virtual inspection. With major fluctuations in the quality of those inspections, this runs the risk that the buyer is relying more on the agent’s photos than they otherwise might.
Next, it may be that only one out of a number of purchasers is present for the inspection.
Last, in larger properties that are hard to inspect completely (acreage or similar) or busy inspection days with high pressure to put a fast offer in, the risk that a buyer is relying at least partially on the visuals you have provided is quite a bit greater.
What about the Contract?
What if the contract has a disclaimer in it?
While the language varies, you might have something like, “the buyer agrees that they have not relied on any representations by the agent or the seller, and are entering into this contract based solely on there own enquiries, information and inspections”.
But does this work?
The answer is that it’s a bit grey.
Generally, you don’t want to be in the position where the success or otherwise of a claim made against you is based entirely on whether or not a clause like this holds up to scrutiny in Court.
You cannot, strictly speaking, “contract out” of the misleading or deceptive conduct regime. So that starting point is that attempting to do so won’t work.
However, as you’ll see from the phrasing we used above, sometimes disclaimers involve a factual agreement – here, that the buyer did not rely on anything you might have presented to them.
Sometimes these work, and sometimes they don’t.
But for our part, we wouldn’t want to bet the house on it.
What is the Risk?
Damages claims for misleading or deceptive conduct vary widely.
The most likely possibilities if someone concludes they have been misled are going to be:
Trying to get a Court order to let them out of the contract; or
Damages for the difference in value between what they thought they were buying and what they actually got.
How should you Approach It?
Prevention is the best cure.
We recommend adopting a fairly conservative approach to photo editing.
Naturally as a seller’s agent you want to present a property in the best way you can, generate as much interest as possible, and ensure you obtain the best purchase price.
However, when it comes to adding or removing objects in particular, or conducting significant virtual repairs or renovations (eg – replacing an entire roof) it’s probably best to adopt a very cautious approach as these kinds of edits are going to increase your risks considerably.
Get in touch if you want a safe pair of hands to help you navigate your property sale or purchase or have concerns about misrepresentation.
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