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Can Realtors Legally Text Expired Listings and FSBOs?
Legal Compliance DeskApril 20, 20269 min read
The FSBO and Expired Listing Question
Can you legally text an expired listing or a For Sale By Owner (FSBO) listing without prior consent? The short answer is No, unless a specific exception applies.
The 3 Exceptions Most Agents Get Wrong
- Existing Business Relationship (EBR): You can text a past client for up to 18 months after a transaction, or 3 months after an inquiry.
- Specific Buyer Representation: If you have a specific buyer for a FSBO, you can reach out, but the message must be focused *only* on that specific buyer interest, not a general solicitation for the listing.
- Prior Express Written Consent: The only bulletproof method. If the user opted-in to your marketing on a previous site, you are clear.
Recent Rulings: Bramlett v. RES 360 (2026)
This recent case confirmed that "soft-sell" home-buying texts are solicitations. The court rejected the defense that the messages were "just checking in" or "informational."
| Scenario | Legally Compliant? | Requirement |
|---|---|---|
| Cold texting a scraped FSBO list | ❌ NO | Requires PEWC |
| Texting an inquiry from your website | ✅ YES | Requires 2025 compliant language |
| Following up with a 2024 client | ✅ YES | Up to 18 months (EBR) |
Why Brokerages Are Panicking
With settlements like Intero Real Estate ($13M) and Fathom Realty ($2.85M), the "I didn't know my agent was doing that" defense is dead. Brokerages are now held strictly liable for the 1099 agent's conduct.