Exaggerating the Truth or Misleading : A Legal Perspective

Exaggerating the Truth or Misleading : A Legal Perspective

This is an updated version of an old post, click here to see the original.

What Australian consumer law really allows in property advertising

Real estate agents, agencies and property developers in Australia are increasingly under scrutiny for misleading or deceptive conduct in advertising. From underquoting and overstated features to misleading images and inaccurate descriptions, property marketing that crosses the legal line can result in significant penalties under the Australian Consumer Law.

Understanding what is legally allowed in real estate advertising is essential for protecting your brand, meeting regulator expectations and avoiding costly disputes. Real estate marketing often relies on strong language and beautiful images to grab buyers’ attention, and that is perfectly acceptable – up to a point.

The problem starts when “sales copy” crosses into misleading or deceptive conduct. At that stage, the law steps in, and regulators such as the ACCC and state consumer agencies are active in this space. Many people know the quote attributed to Warren Buffett: “It takes 20 years to build a reputation and five minutes to ruin it.” That applies just as much to a real estate brand as to any other business.

Puffery vs misleading conduct

The law allows a degree of harmless puffery in real estate advertising. This means vague, subjective claims that most people would see as sales talk, not hard facts. Examples include lines like “The best views in Melbourne” or “One of the area’s most charming cottages.”

These are opinions, not precise promises. The law generally accepts that buyers take them with a grain of salt.

However, there is a fine line between harmless puffery and statements that can mislead. The problem starts when words sound like clear facts about the property, rather than loose opinions. Once a statement looks factual, the law expects it to be accurate, not exaggerated or one-sided.

Let’s review some examples show where things can cross the line.

What if you were to call a property “waterfront” when it is actually a few streets back from the beach or a river. Theres one.

What if you describe a unit as a “two-bedroom apartment” when one room is too small to sleep in actually? Or if it has no proper window to legally count as a bedroom – that too might be misleading.

Saying there are “approved plans and permits” when approvals have expired is another one and in all of these cases, the language suggests concrete facts that buyers are likely to rely on.

In those situations, the description may amount to misleading or deceptive conduct, because it creates a clear impression that does not match the reality of the property.

This can still be a problem even if the agent did not mean to mislead, or if no one actually complains.

What matters is whether ordinary buyers could be led into a wrong assumption by the ad or the way the information is presented.

Regulators regularly remind businesses that all advertising must be accurate and must not create a false overall impression, including by leaving out important details.

That can include what you say, what you don’t say, and the way you use photos, headings and fine print together.

It is also important to remember that each situation is different. Whether a particular phrase is “puffery” or misleading will depend on the exact wording, the images, the layout and the context in which it appears.

Small changes in facts or presentation can change the legal outcome. Because of that, this is general information only. If you are unsure whether a particular ad or description is safe, it is best to get tailored legal advice on your specific listing and circumstances.

Under the Australian Consumer Law, a business must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive.

This rule is broad and what really matters is the overall impression on the ordinary buyer or tenant, not just isolated words.

Remember that photos, headings, layout, icons, and any fine print all work together to create that impression.

Images, renders and branding risks

Modern real estate marketing is highly visual.

“Indicative only” images, such as stylised renders or heavily edited photos, are common in off-the-plan and renovation projects. Labelling images “artist’s impression” or “for illustration only” can help, but it will not protect you if the overall impression is still materially misleading – for example, where you show views that do not exist or finishes that will not be supplied at the advertised price.

Similarly, lifestyle imagery of gardens, pools or rooftop views must not suggest the property includes features or facilities that it does not actually have; if access is limited or off-site, that needs to be made crystal clear.

Using famous characters and brands (such as a cartoon character on a signboard in a matching street name) might seem like a playful marketing idea, but it raises copyright and trade mark issues.

Rights-holders, including major studios and brand owners, are increasingly strict about unauthorised use of their intellectual property in advertising, and agents can face legal risk if they use protected images or logos without permission.

Because these issues are fact-specific and context-dependent, each case needs to be assessed on its own circumstances. The same words or images can be harmless in one setting and problematic in another, depending on how buyers are likely to read them. For that reason, this is general information only and is not a substitute for tailored legal advice. If you are unsure whether a particular advertisement or campaign is compliant, it is best to seek specific advice on your situation. We can assist.

A few tips to finish off with

1. Tell the truth – and the whole truth
2. Check that all factual statements (bed/bath/parking, land size, permits, zoning, views) can be substantiated with documents.
3. Avoid half-truths – for example, “city views” from one corner of a balcony through future development sites.
4. Sense-check the overall impression
5. Step back and ask what a reasonable buyer, scrolling quickly on a phone, would take away from the listing.
6. Ensure the headline, main images and first few lines of text do not over-promise, even if detailed conditions appear later.
7. Treat disclaimers as backup, not Band-Aids
8. “Subject to council approval” does not fix a headline that strongly suggests approvals are already in place.
9. “Images for illustration only” does not excuse showing a completely different standard of property.
10. Train your team on verbal statements
11. Misleading conduct can occur at opens and auctions through casual comments (e.g. “lots of development potential” without clarifying planning restrictions).
12. Simple scripts and checklists can help agents stay accurate and consistent.
13. Document your checks
14. Retain notes, emails and documents that support key claims (e.g. permits, strata minutes, surveys).
15. If information changes (for example, a permit lapses), update all marketing promptly.

Elon Musk once said, “Brand is just a perception… over time reality will catch up with it …”.

In real estate, if your marketing reality does not match the property, the law – and regulators – may make sure that it eventually does.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.