There’s a litany of legislation pertaining to property misrepresentation. Agents may remember the Property Misdescriptions Act 1991. It was retracted in 2013 to reduce duplication, with the Business Protection from Misleading Marketing Regulations 2008 and the Consumer Protection from Unfair Trading Regulations 2008 already in force.

Then Material Information arrived. It didn’t replace existing legislation but was in addition to. In fact, National Trading Standards Estate and Letting Agency (NTSELAT) says ‘Material Information is a concept within the Consumer Protection from Unfair Trading Regulations 2008’, adding it should be ‘considered alongside Guidance for Property Sales and Lettings, any professional obligations and other relevant legislation’.

Waiting for the next Act to begin

But wait. The Consumer Protection from Unfair Trading Regulations 2008 is being repealed and replaced by the Digital Markets, Competition & Consumer Act 2024. Keeping up so far?

Having read NTSELAT’s Material Information guidance, it appears there is some crossover. Material Information muscles in on property photography on page 17 of the sales document (page 14 on the lettings version). The guidance within the ‘materials used in construction’ section states:

‘A listing should allow consumers to clearly understand the general material makeup of the property, which may be achieved through comprehensive photography (ie all aspect, elevations, internal and external rooms). However, photography should not be used to avoid disclosing detail of Materials Used that will knowingly impact a buyer.’

Edit, not alter

This advice implies that visual assets must be captured in full. Simple: don’t crop off a thatched roof or edit out a crumbling wall. John Durrant, founder of DCTR, says agents could, however, breach Material Information legislation when performing justifiable property photography edits.

“Removing a car or skip can be risky if the edits are executed by unskilled hands. The result could inaccurately represent or alter the architecture around or behind the item being deleted. Agents must remember edits need to protect the original construction and materials,” says John.

NTSELAT’s advice also extends to depicting accessibility and adaptions, with notes on photographing drop kerbs, ramped pathways and wet rooms. On paper, that’s where the relationship between Material Information and property photography ends but does it?

Say no to selective snapping

“Photography should reflect the reality of the property, keeping Parts A, B and C of Material Information in mind,” comments John. “For example, images should show the broader context of a dwelling’s location, such as a building site next door that may affect a home’s future appeal.”

Lee Wainwright, CEO of FocalAgent, says agents need clear guidelines to work within when taking or commissioning property photography but with a prevalence of grey areas, a ‘belt and braces’ approach is vital. “The basics should always apply – no intentional cropping or airbrushing, especially fixed items that are covered by Material Information,” says Lee.

He adds that while AI has given us the capability to legitimately remove non-fixed items, such as cleaning products and toys, it shouldn’t be abused. “We use AI to enhance what’s already there – making grass greener and straightening verticals, for example. Our edits are always in line with legislative guidance to protect agents but problems can arise when AI falls into the wrong – or uneducated – hands.”

Leave it to the edit experts

Lee is referring to an increasing number of agents who find it difficult to keep pace with ever-changing industry compliance. “As a specialist supplier, it’s our job to stay informed and assist agents who are unfamiliar with the minutia of consumer Acts,” says Lee, “and we think it’s unrealistic to expect agents to have in-house visual experts.”

Peter Burnham, Managing Director at NicheCom, agrees that agents shouldn’t be expected to be Photoshop pros but acknowledges easily-accessible AI tools may lead to misplaced confidence among agents.

“A typical mistake made by those without editing experience could be adding blue sky but removing overhead cables at the same time,” says Peter. “Our professional photographers would never alter an image in a way that would risk misrepresentation – even if we are under pressure to so do.”

Overstepping the AI line

Pressure to use technology to get the very best outcomes has also been noted by Verity Collyer, Marketing Manager at Made Snappy 360. She is seeing a growing temptation among agents to enhance or alter images using AI.

“While minor adjustments – such as removing a car from a driveway – are standard practice, using AI to remove power lines, change wall colours or manipulate key features could lead to misrepresentation, potentially resulting in consumer complaints and regulatory scrutiny,” comments Verity.

She says there is a more bullet-proof approach to visuals: “Our virtual tours help prevent misrepresentation and safeguard agents by capturing a property in full. This ensures nothing is hidden or altered. Additionally, our virtual tours do not allow objects to be removed.”

A fuss over nothing?

One nagging thought persists when discussing misrepresentation. Would a minor, accidental property photography error on a listing prompt a buyer to report an agent to NTSELAT or the Advertising Standards Authority?

John says it’s very rare that misleading photos have led to difficult legal issues. Usually everything becomes clear during a viewing and a potential purchaser can walk away from a property, no real money spent. That said, Material Information is so new that we don’t have any benchmarks involving photography and that should serve as a warning.

See you in court

“It’s hard to know the practical implications of new legislation. We’ll probably have to wait for some court cases to establish if and how Material Information and photography are linked,” adds John. It’s a point NTSELAT has also communicated to The Negotiator.

We’ll probably have to wait for some court cases to establish if and how Material Information and photography are linked.”

This question was posed to NTSELAT: if a photographer consciously chooses to crop out or omit a sign stating ‘danger, tin mine’ that was located next door to the property being sold or let, would that breach Material Information Part C? How about if the photo omitted the sign but the tin mine was mentioned in the written listing?

The issue is so fresh that NTSELAT said more context was needed and it was ‘difficult to give a precise view without taking into account all the circumstances’. It added that ‘only a court could ultimately decide’.

Court action could come from a different source too. As well as caution over what’s added to or removed from photos, Lee flags up a worrying downside to a lackadaisical approach to edits.

Small details matter

“Although GDPR guidelines stipulate personal details must be blurred when publishing photos, agents may miss some instances and this could fuel the rise of ID theft,” says Lee.  “Criminals can use powerful zoom technology to read names, addresses and bank details on documents captured in images. They can also screen shot family photos so they have an almost complete ID package,” adds Lee.

“Blurring is an edit we’re hot on at FocalAgent but if an agent leaves personal details visible and ID theft occurs, the issue is a breach of GDPR. The Information Commissioner’s Office would be well within its rights to penalise the agent.”

Camera errors can be costly

GDPR breach punishments include enforcement, penalty notices, warnings, reprimands and fines of up to £17.5 million, or 4% of your annual worldwide turnover, whichever is higher.

The punishments will be just as harsh for non-compliance under the new Digital Markets, Competition & Consumer Act 2024. Anyone found guilty of an offence may receive a fine and/or imprisonment.

Reputation management

As well as being cautious regarding potential court cases and financial penalties, agents should also be mindful of reputational damage. While visual misrepresentation at listing stage won’t cause a buyer great financial harm, an agent could be seen as wasting someone’s time and travel costs. A seller who has been the victim of ID theft via an agent’s blurring lapse will have a greater grievance.

It’s an uncomfortable way to operate, waiting for a court case to illustrate what agents should show in photographs, but that’s what happens in our new material world. If in doubt, capture everything and back it up in the written description.