ACL Risks In Real Estate Advertising, Fees And Auctions

If you run a real estate agency, property management business, buyers’ agency, or a proptech platform in Australia, you’re operating in a highly regulated space - not just under state-based property laws, but also under national competition and consumer laws.

One of the most important pieces of legislation to understand is the Competition and Consumer Act 2010 (Cth) (CCA). It contains the Australian Consumer Law (ACL) and the key rules on anti-competitive conduct. Together, these laws shape how you advertise, how you deal with vendors and buyers, how you negotiate with competitors, and how you handle disputes.

This guide breaks down what the CCA means in practice for property businesses - in plain English - with a focus on the real risks and practical steps you can take to protect your agency. It’s general information only and not legal advice. Because property transactions are also heavily regulated at a state and territory level (including underquoting and disclosure rules), you should consider your local requirements as well.

What Is The Competition and Consumer Act 2010 (And Why Does It Matter For Real Estate)?

The Competition and Consumer Act 2010 is a Commonwealth law designed to:

• promote fair competition in markets (including property markets and property-related services), and
• protect consumers and businesses from misleading, unfair or harmful conduct.

It matters to real estate operators because the law can apply to a wide range of everyday activities, including:

• advertising and marketing property listings (online and offline)
• representations about prices, features, rental returns, strata fees, zoning, inclusions, or property condition
• auction practices and negotiations with buyers
• property management communications and rent/repairs processes
• referral arrangements and “preferred provider” relationships (e.g. conveyancers, brokers, trades)
• interactions with competitors, networks, and industry groups.

Importantly, the ACL doesn’t just protect “consumers” in the everyday sense. In some contexts, it can apply to small businesses as customers too. So if your agency sells services to landlords, vendors, developers, or corporate clients, your marketing and sales conduct still needs to be careful.

Does The ACL Apply To Real Estate Services?

Yes. Real estate services are “services” under the Australian Consumer Law, which sits within the Competition and Consumer Act.

Even though state/territory property legislation and licensing rules are central to the industry, the ACL adds a national layer of rules about:

• truthfulness in advertising
• fair dealing
• unfair contract terms (especially for standard-form agreements).

In some cases, consumer guarantees for services can also apply (for example, obligations around due care and skill). Whether they apply in a particular situation depends on factors like who is receiving the services and the type/value of the services being supplied.

This means you’ll often have overlapping obligations: what is “acceptable” under your industry norms may still be risky under the ACL if it misleads or pressures clients.

Misleading Or Deceptive Conduct: The Biggest Risk Area For Property Businesses

For many agencies, the highest practical risk under the Competition and Consumer Act 2010 is misleading or deceptive conduct.

This is broader than “lying”. Under the ACL, you can get into trouble even if you didn’t intend to mislead. The question is often whether a representation (or omission) is likely to mislead someone in the circumstances.

Common real estate examples that can create risk include:

• Price representations (including underquoting concerns, unclear price guides, or creating a false sense of market value)
• Rental return claims (e.g. “will rent for $X” without a reasonable basis)
• Statements about property features (e.g. “ocean views”, “recently renovated”, “fully soundproofed”, “approved granny flat”)
• Claims about approvals and compliance (e.g. zoning, building approvals, occupancy certificates)
• Statements about outgoings (e.g. strata levies, council rates, special levies)
• “Investment” representations (e.g. “guaranteed growth” or “no risk” style statements).

Even a small detail in a listing can matter if it impacts a buyer’s decision-making.

Silence Can Mislead Too

A major issue in real estate is that risk doesn’t only come from what you say - it can come from what you leave out.

If you know a material fact (something likely to influence a buyer or tenant), you need to be careful about how you communicate it. While disclosure obligations are often governed by state/territory rules, the ACL can still apply if your overall conduct creates a misleading impression.

Practical Tips To Reduce Advertising Risk

• Use “reasonable basis” checks: if you’re stating a future matter (e.g. rental income potential, likely development), make sure you have evidence.
• Be consistent across channels: your listing, social ads, brochures, and email campaigns should not contradict each other.
• Avoid “absolute” promises: words like “guaranteed”, “always”, “no risk”, “certain” can be dangerous in property marketing.
• Train your team: many ACL issues arise from casual statements made in open homes, calls, or DMs.
• Document your sources: keep notes of where claims came from (e.g. vendor info, strata records, council searches), and where you recommended independent checks.

If you do use phone calls as part of your sales process, be cautious about what your team records and how those recordings are handled; business call recording laws can add compliance requirements alongside your consumer law obligations.

Unfair Practices: Pressure Selling, Hidden Fees, And Problematic Terms

The ACL also prohibits a range of unfair business practices. While real estate isn’t typically thought of like a retail “consumer product” market, the same concepts can apply to how you sign up landlords, vendors, or tenants for services.

Unfair Contract Terms (Standard Form Agreements)

If your agency uses standard form contracts (which most do), you should pay close attention to unfair contract term risks.

Clauses can be considered unfair where they create a significant imbalance in rights, are not reasonably necessary to protect your legitimate interests, and would cause detriment if relied on.

In a property business context, examples that may be scrutinised include:

• overly broad unilateral variation rights (you can change fees or services without consent)
• excessive termination fees or “lock-in” provisions
• one-sided indemnities
• unreasonable limitations of liability (especially if they try to exclude key legal rights)
• automatic renewal terms that are not clearly disclosed.

It’s worth thinking carefully about limitation of liability clauses, because many “common” clauses can still be risky if they’re drafted too broadly for the relationship and the type of customer you’re dealing with.

Fees, Commissions, And Disclosures

The ACL can also be relevant to how you present pricing and fees. The key principle is that pricing and cost information must not be misleading.

Practical areas to review include:

• marketing promises like “no upfront fees” (what does that really mean?)
• lease renewal or re-letting fees in property management
• admin fees, marketing costs, photography, styling or campaign costs
• any referral fees or commissions received from third parties.

If you charge cancellation or termination fees in your agency agreements, you should ensure they’re properly disclosed, proportionate, and consistent with your legal obligations - especially given the overlap with cancellation fees and Australian consumer law considerations.

Competition Law Risks: Collusion, Price Fixing, And Anti-Competitive Conduct In Real Estate

When people think about the CCA, they often think “consumer law”. But for established agencies and growing property businesses, the competition law side can be just as important - especially if you operate in a tight local market.

Competition law focuses on keeping markets competitive. It prohibits certain conduct between competitors and restricts conduct by businesses with substantial market power.

What Does “Anti-Competitive Conduct” Look Like In Real Estate?

Some examples of competition law risks that can arise in the real estate industry include:

• Price fixing: agreeing (formally or informally) with another agency about commissions, management fees, advertising rates, or service charges.
• Market sharing: agreeing that one agency will take certain suburbs, developments, property types, or client segments.
• Bid rigging: coordinating outcomes for tenders or large leasing management contracts.
• Collective boycotts: agreeing with competitors not to deal with a particular developer, supplier, portal, landlord, or contractor.
• Information sharing: exchanging sensitive commercial information (fees, strategy, future pricing) in a way that reduces competition.

This risk can creep in through “normal” industry behaviour - for example, casual conversations, industry events, or local area networks. Even if the intent is to “stabilise the market” or “avoid a race to the bottom”, it can still be unlawful.

Referrals And “Preferred Provider” Arrangements

Many property businesses have referral arrangements with:

• conveyancers and solicitors
• mortgage brokers
• building inspectors
• trades and maintenance providers
• photographers, stylists and staging providers.

These arrangements can be legitimate, but you should structure them carefully to avoid conduct that could be seen as anti-competitive or misleading (for example, not disclosing commissions or implying independence where there isn’t any).

As a general approach, keep referral terms clearly documented in writing, ensure your team knows what must be disclosed to clients, and avoid creating arrangements that effectively “lock out” competitors without a strong legitimate reason.

Auctions, Listings, And Online Marketing: Where ACL Compliance Often Breaks Down

Real estate marketing moves fast - listings are updated constantly, buyer enquiries come in at all hours, and campaigns can run across multiple platforms. That speed is exactly why legal compliance can break down.

Auctions And Price Guides

Auction marketing is an area where agencies should be particularly careful about how price expectations are communicated.

From an ACL perspective, issues can include:

• advertising a price guide that doesn’t have a reasonable basis
• creating an overall impression that a property is likely to sell within a range when internal information suggests otherwise
• using statements like “vendor is committed to sell today” where that is not accurate
• representations about competing interest that are exaggerated or untrue.

Even where specific underquoting rules are state-based, the ACL can still be relevant if your conduct is misleading overall.

“Puffery” Versus Misleading Statements

Real estate marketing often involves persuasive language. Some “puffery” (general promotional statements) may be acceptable, like “a fantastic opportunity” or “a charming home”.

But once you move into factual claims - or claims a buyer would reasonably rely on - you need to be much more careful.

For example, “close to transport” is vague, but “2 minutes to the train station” is a measurable claim. If it’s wrong, it can create legal risk.

Online Ads, Social Media, And DMs

Marketing through Instagram, Facebook, TikTok, Google Ads, and email means your team may be making representations outside the formal listing copy.

Make sure your compliance approach covers:

• templated responses in DMs
• comment replies on posts
• short-form video walkthroughs (where off-the-cuff statements can be risky)
• automated email sequences and lead generation ads.

If your business uses email marketing to landlords, buyers, or investors, it’s also worth checking your broader marketing compliance settings, including email marketing laws (which sit alongside the ACL and can affect how you run campaigns).

What Legal Documents Should Real Estate Agencies Have In Place?

Having the right contracts and policies won’t automatically prevent a Competition and Consumer Act issue - but it can significantly reduce misunderstandings and strengthen your position if a complaint escalates.

Depending on your property business model, consider the following documents:

• Client Terms or Service Agreement: sets out what you do (and don’t do), fees, timing, and key responsibilities. This is particularly important for agencies offering additional paid services like marketing, styling coordination, or concierge-style packages.
• Privacy Policy: if you collect personal information (which most agencies do), you should clearly explain how you collect, store, use and disclose it. A Privacy Policy is also essential if you run lead forms, newsletters, or online applications.
• Website Terms: if you have a website that markets listings, captures enquiries, or publishes market content, clear Website Terms and Conditions can help set expectations and reduce misuse of your content.
• Employment Contracts: your staff are often the ones making statements to clients, so clear role responsibilities and conduct expectations matter. Proper Employment Contract documentation can support training, compliance and dispute management.
• Workplace Policies: policies help you standardise how advertising approvals, complaints, and communications are handled. A structured Workplace Policy approach is especially important if you manage multiple agents or a property management team.

Not every agency needs every document above - and your exact needs will depend on whether you’re sales-focused, rent roll-focused, operating online, franchised, or scaling across multiple locations.

Why Documentation Helps With Competition and Consumer Risk

Strong documentation helps because it:

• reduces ambiguity (which is where disputes often start)
• sets expectations around what is included in your service
• creates consistent messaging across your team
• can reduce the chance of problematic “ad hoc” promises being made to win business.

It also makes it much easier to demonstrate what was agreed if there is a complaint about fees, service scope, advertising, or representations.

Key Takeaways

• The Competition and Consumer Act 2010 (including the Australian Consumer Law) applies to real estate agents and property businesses, covering advertising, client communications, contracts, and market behaviour.
• Misleading or deceptive conduct is one of the biggest risk areas for agencies, and it can arise from omissions, assumptions, or overly confident marketing claims - not just deliberate dishonesty.
• Competition law under the CCA can affect how you interact with competitors, including risks around price fixing, market sharing, bid rigging, and sensitive information sharing.
• Auctions and fast-moving online marketing channels are common areas where compliance can slip, so it’s worth building repeatable internal processes for listing approvals and team training.
• Well-drafted contracts and policies (including Privacy Policies and clear service terms) can help prevent disputes and support your agency if a complaint escalates.
• If you’re unsure whether your marketing, fee disclosures, referral arrangements or contracts are compliant, getting advice early can be far cheaper than dealing with an ACCC complaint or a formal dispute later.

If you’d like a consultation on Competition and Consumer Act compliance for your real estate business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.