Texting Real Estate Leads: Legal Compliance Strategies

Real estate agents are increasingly using phone calls and texts to market their services to prospective homebuyers and sellers. However, this could potentially expose them to more legal risk than ever. The Federal Communications Committee (FCC) and Federal Trade Commission (FTC) are still working out how privacy laws apply to text and phone marketing tools, so agents need to be careful when using these technologies. For example, the FTC prohibits marketers from calling or texting numbers on the Do Not Call Registry, and agents should scrub lead phone numbers against this list. There are also rules around the use of autodialers and express written consent. To avoid fines and penalties, it's important for real estate agents to understand the potential risks and do's and don'ts of SMS follow-up, including the different types of consent and messaging.

Understand the Do Not Call Registry

The Do Not Call Registry is a crucial concept for real estate agents to understand to ensure they don't break the law when texting leads. The Federal Trade Commission (FTC) prohibits marketers from calling or texting both cell and home phone numbers listed on the Do Not Call Registry or those who have previously asked the marketer to stop contacting them. Real estate agents must ensure they don't contact phone numbers on this list, and they should also maintain their own list of people who have asked not to be called.

Ignoring the Do Not Call Registry can result in significant financial penalties. Each violation can carry a civil penalty of up to $40,654. Therefore, real estate agents should take steps to ensure they are compliant with the registry. They should scrub lead phone numbers against the Do Not Call list or ensure that any numbers they receive from lead providers have been screened against this list.

It's important to note that the Do Not Call Registry applies to both cell phone and home phone numbers. Marketers sometimes mistakenly believe that cell phone numbers are not included on the list, which can lead to accidental violations. Additionally, with the trend of consumers transferring their home phone numbers to cell phones, real estate agents must be cautious to avoid contacting cell numbers that may have been registered as home numbers.

To comply with the Do Not Call Registry, real estate agents should obtain prior express written consent from individuals before sending them promotional messages or using autodialers. This consent can be obtained through a signed form, an online checkbox, or directly in writing. By securing this consent, agents can ensure they are respecting individuals' privacy choices and avoiding potential legal issues.

In summary, understanding and complying with the Do Not Call Registry is essential for real estate agents to avoid legal issues when texting leads. By scrubbing phone numbers against the registry, maintaining their own do-not-call lists, and obtaining prior express written consent for promotional messages or autodialer use, agents can ensure they are operating within the law and respecting individuals' privacy choices.

Know the Telephone Consumer Protection Act

The Telephone Consumer Protection Act (TCPA) prohibits the use of "autodialers" to make calls or send texts to cell phones without the recipient's "prior express written consent". This applies to manually written text messages, pre-written text messages (or "robotexts"), as well as calls from real people and "robocalls".

The Federal Communications Commission (FCC) defines an autodialer as equipment with the "capacity" to both "store or produce telephone numbers to be called, using a random or sequential number generator" and to dial those numbers "without human intervention". This definition includes technology with only the potential to facilitate mass dialing, even if it lacks the "present ability" to do so.

The TCPA sets a minimum penalty of $500 for each violation. Marketers risk fines of up to $40,654 for each violation if they ignore the Do Not Call list, which prohibits marketers from contacting phone numbers on the registry.

To comply with the TCPA, real estate agents should:

• Get prior express written consent from recipients to send automated messages. This can be done by including an opt-in or opt-out option on online forms, or by asking permission during an in-person visit or phone call.
• Scrub lead phone numbers against the Do Not Call list and maintain a list of people who have asked not to be called.
• Only send texts to people they have an established relationship with or who have given express permission (written, verbal, or otherwise) to send a follow-up message.

Get consent

Getting consent is crucial when texting real estate leads to avoid legal issues and build a positive relationship with potential clients. Here are some detailed instructions on how to get consent properly:

Firstly, understand the different types of consent. There are three main types of consent to be aware of: implied consent, express consent, and express written consent. Implied consent is given when a client initiates the text conversation by sending the first message. Express consent means you have received verbal or written permission from the client to send them informational messages, such as reminders or updates. Express written consent is required for promotional messages and calls-to-action, and it must be obtained through a signed form, an online checkbox, or direct writing.

When reaching out to a new lead, always ask for permission to text. Emphasize the benefits of texting, such as convenience and quick updates on new properties. You can include an opt-in or opt-out option on online forms or ask for permission during a phone call or in-person visit. Be transparent about your intentions for texting and respect their preferences if they choose to opt out.

Before sending any messages, ensure that you have the correct phone numbers and that they are not on the National Do Not Call Registry. The Federal Trade Commission (FTC) prohibits contacting numbers on this registry, and violating this rule can result in hefty fines. Additionally, be cautious when using any lead generation or phone marketing technologies, as they may fall under the definition of "autodialer" by the Federal Communications Commission (FCC). To use such technologies, you must obtain express written consent from your leads.

When texting real estate leads, always prioritize respect and professionalism. Avoid sending too many messages or contacting them outside of business hours. Keep your messages concise, friendly, and personalized. By following these guidelines, you can effectively obtain consent and maintain a positive relationship with your leads while staying compliant with the law.

Be clear and concise

When texting real estate leads, it's crucial to be clear and concise. Here are some tips to help you craft effective messages:

Introduce Yourself Briefly

Start by stating your name and your affiliation with the lead. This helps the recipient understand who you are and why you're messaging them. For example, "Hi, I'm Carl Jones from Sacramento Real Estate. I got your information through Zillow." This approach helps add context to your message and makes it more likely that the lead will continue reading.

Keep the Message Short and Direct

After introducing yourself, get straight to the point. Avoid over-explaining and stick to one or two concise sentences. Focus on making an offer or asking a clear question. This approach respects the lead's time and makes your message more impactful.

Emphasize the Value You Offer

When reaching out to leads, especially new ones, focus on how you can assist them. Highlight how your message benefits them rather than your desire to make a sale. For instance, you could mention new listings or a new rate available for their mortgage. This approach increases the likelihood of a positive response as it demonstrates authenticity and specificity.

Maintain a Balanced Tone

Strike a balance between professionalism and friendliness in your messages. Allow your personality to shine through, and use contractions and emojis when they feel natural. Avoid overly formal language or text abbreviations. Write in a conversational tone using complete sentences. This approach helps build a connection with the lead while maintaining a professional image.

Keep Messages Simple and Direct

Avoid lengthy paragraphs or complex language. Aim for messages that are short, sweet, and easy to understand. Keep your texts under 300 characters, and focus on communicating one piece of information per text. This approach enhances engagement and ensures your message is effectively conveyed.

Respect Consent and Permissions

Only text individuals who have given you express permission, either verbally or in writing, to send follow-up messages. Understand the different types of consent required for conversational, informational, and promotional messages. Always be transparent about your intentions when someone gives you their number, and respect their wishes if they ask you to stop texting.

Avoid spamming

Permission to text a lead should not be taken for granted. Respect the privilege by sending only relevant and personalised messages. Each text you send should have a clear purpose and add value to the client. For example, if you are following up about a property that a lead has shown interest in, mention something about the property that will interest your prospect or tie into what you know they are looking for.

To avoid spamming, it's also important to not send too many messages. A good rule of thumb is not to send multiple texts without a follow-up from the lead.

In addition, you should be mindful of the frequency, balance, repetition, and sender/recipient deliverables of your texts. Service providers will flag your number if you exceed typical texting behaviour, such as sending more than 15-60 messages per minute or 1,000 messages per day. Sending from multiple numbers or sending the same message to over 100 people will also quickly appear "spammy". Try to maintain a 1:1 ratio of messages sent to messages received, and avoid sending the same text 25 times to the same person, as this will get you flagged as an automated service.

Finally, always get permission to text and respect the type of consent given. Implied consent is given when someone starts a text conversation with you, express consent is given when they give you permission to send them information, and express written consent is given when they give you written permission to send promotional messages. If anyone asks you to stop texting them, do so immediately.

Frequently asked questions