Incredible Property Or Misleading Photos?

If you are like me and enjoy spending your spare time scrolling through Realestate.com.au and Domain dreaming of the houses and properties I will likely never able to afford, you will have seen your fair share of incredible property photos. Back in 2014, it was estimated that US homes sold 32% faster when they had professional real estate photography versus those who did not.?

However, as displayed in a recent article by the Guardian Australia, the reliance on real estate photography has shifted as photo editing software has advanced, impacting how properties are sold in today’s market. Now properties can be advertised with super-imposed furniture, ‘greener’ grass, and ‘finalised’ renovations, all thanks to professional photographers equipped with photoshop and virtual staging software. Through a perfect storm of the property market becoming increasingly more competitive over the last 2 years and a rise in interstate buyers purchasing properties in Queensland, Buyers as a whole are relying more heavily on the photographs advertised in the property listing, without physically inspecting the property.

It is important to note that incoming purchasers of a property have a right (under the REIQ contract) to enter and inspect the property prior to settlement – however the purpose of this pre-settlement inspection is merely to confirm that the Property is generally in the same condition as the date the Contract was signed (i.e. fixtures haven’t been removed, the Seller hasn’t caused any damage while moving out etc).

Many will likely take the view that the responsibility for verifying the property is on the purchaser. However, I am more so of the opinion that purchasers need to be afforded protections under the Australian Consumer Law, particular in relation to section 30 which provides that a person must not make a false or misleading representation about:

• The nature of the interest in the land,
• The price payable for the land,
• The location of the law,
• The characteristics of the land,
• The use to which the land is capable of being put or may lawfully be put, or
• The existence or availability of facilities associated with the land.

A similar clause is included in the Property Occupations Act 2014 (Qld) under section 209.

It is also important to consider how silence or omission when it comes to representations made during trading can also be seen as misleading. Therefore, an agent has a responsibility to ensure that potential buyers are not being given the wrong impression of a property due to inaccurate images. Not to mention the often-vague comments or captions paired with images such as “minutes to shops!" with no clear indication about the distance or parameters to the photographed shops.

New South Wales has taken a more direct approach when it comes to property photography, through the Property and Stock Agents Act 2002 and the Fair-Trading Act 1987. These acts stipulate the following:

• Photographs cannot be modified to the extent that the image is no longer truthful or fairly represent the property.
• Photographers/Agents cannot change the appearance of a property by removing or adding features (excluding poor lighting),
• Images should not be cropped or zoomed in on to make a view or location appear closer.

However, as noted in the Guardian’s original article and podcast, there have not been any fines issued in the past 12 months which leads to the effectiveness of the current legislation and regulations.

Agents should not be able avoid liability by claiming that purchasers should have made further enquiries to verify the images used when advertising the listing. On the other hand, I would not consider a purchaser relying on an edited image to warrant the termination of a contract. Given the lack of contractual and statutory rights, I would encourage purchasers, particularly those who cannot complete their own physical inspection of the property to ensure they have the Property inspected prior to going to Contract, whether that be by a building and pest inspector, buyers agent or a friend/relative that lives nearby so they can check the features (displayed in the photographs) that the buyer is relying on in moving forward to submit an offer.

Until further regulation or requirements, such as image disclosures or reported photography edits, are imposed upon property agents, purchasers should be wary of property photography and any representations made by an agent in the course of the sale. If in any doubt, speak to your solicitor or contact one of my colleagues at Virtual Legal.

If you would like to read more about this topic, I would suggest checking out Caitlin Cassidy’s original article on the Guardian, here. It’s a great read!