Mistake one: sending marketing texts with no written consent on file

Text messages reach buyers and sellers fast, but the Telephone Consumer Protection Act (TCPA) makes it risky to text without documented consent. The distinction matters: a guest who writes down a phone number on your sign in sheet or tablet is not giving you express written permission to send promotional or marketing texts. The law requires a clear, signed agreement before you send anything beyond transactional messages, such as appointment confirmations.

Many agents assume a phone number alone is enough. It is not. The law expects you to capture a record of consent that is separate from the act of providing contact information. This usually means a signed form, a checkbox on a digital sign in, or a clear digital agreement. If your texts include information about listings, open houses, or services, those are marketing messages by law. Sending these without proper consent opens the door to complaints and costly penalties.

Transactional vs. marketing texts

There is a difference between a text reminding a visitor of an upcoming showing and a text inviting them to a new open house. The first is transactional, possibly allowed without written consent, depending on context. The second is marketing, never allowed without written permission. Many agents blur this line, but regulators and plaintiff attorneys do not.

What counts as "written consent"?

Written consent can be captured on paper, but digital signatures and checkbox agreements on tablets or phones are valid if they are clear and separate from the act of providing a number. The consent should state that the visitor agrees to receive marketing texts from you or your brokerage. Save these records for at least four years, as suits and complaints can arrive long after the open house is over.

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Mistake two: calling a Do Not Call registered number with no exemption to lean on

The federal Do Not Call (DNC) registry blocks most telemarketing calls to listed numbers. Many real estate agents think an open house sign in gives them an out, but the rules are stricter than most expect. Unless you have an established business relationship (EBR) or written permission, calling a DNC number for a marketing purpose is not allowed.

What counts as an established business relationship?

An EBR exists if the visitor has made an inquiry about a property, service, or has had a transaction with you in the past eighteen months. Simply visiting an open house and signing in does not always qualify. If your sign in sheet only collects names and numbers, you may not have enough to claim an EBR if challenged. You need to show the visitor expressed an interest in a specific property or service, and that you followed up within a reasonable time frame, usually three months for inquiries.

Penalties and risks

Calling a DNC-registered number without a valid exemption can lead to fines and complaints. These are often triggered by call recipients themselves, not regulators on a hunt. Most complaints result from repeated, unwanted calls after a visitor has shown no further interest. State DNC rules may be even stricter than federal rules, with some states requiring their own registry checks in addition to the national list.

Mistake three: emailing without a working opt out and a real physical address

The CAN-SPAM Act sets the ground rules for commercial email sent to consumers in the United States. Even a single email after an open house must include two things: a clear way to opt out of future messages, and a physical postal address where the sender can be reached. Many agents overlook one or both, especially when sending emails manually.

Opt out links and instructions

Every marketing email must include an unsubscribe link or clear instructions for opting out, such as "Reply with 'unsubscribe' to stop receiving emails." If you use a CRM or email marketing platform, this is usually handled automatically. If you send your own emails, you need to make sure the opt out language is present and that you honor opt outs within ten business days. Never ignore or delay a request, as a single complaint can lead to scrutiny.

Physical address requirement

The law requires every marketing email to display a valid postal address. This can be your brokerage office, a PO box, or your home office address if you work independently. Using only an email address or a website link does not meet the requirement. Many small teams forget to update the address when they move offices or change brokerages, which can make their emails noncompliant without realizing it.

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Mistake four: ignoring state texting statutes in Florida, Oklahoma, and Maryland

State laws can be tougher than federal rules when it comes to texting open house visitors. Florida, Oklahoma, and Maryland each have requirements that go beyond the TCPA, especially when it comes to obtaining consent and handling opt outs. These states treat some marketing texts as "robocalls" even when no automated system is used, and penalties can stack up quickly.

Florida: written consent and private right of action

Florida law now requires written consent for most marketing texts, and gives consumers the right to sue for unwanted messages. The statute treats any text sent for commercial purposes as a "telephonic sales call," which means you must have a clear, signed agreement before texting. A resident who receives even one unsolicited marketing text can bring a private suit, and damages can be significant.

Oklahoma: explicit opt in and opt out

Oklahoma law requires marketers to obtain explicit permission before sending texts, and to honor opt out requests immediately. The law covers not just mass texts, but any commercial message. If you text an open house visitor in Oklahoma, you must be able to show they agreed in writing to receive texts, and you must provide a clear way to stop them. Failure to do so can bring both state and federal penalties.

Maryland: consent and content rules

Maryland law prohibits sending electronic messages to anyone who has not provided prior express permission. The message content is also regulated: it must not be misleading, and must identify the sender. Opt outs must be honored at once, and records of consent must be kept. Maryland also allows consumers to sue for violations, which makes compliance even more important for agents working open houses in the state or texting Maryland residents from out of state.

Mistake five: dialing outside permitted hours in the visitor's own time zone

The TCPA restricts marketing calls and texts to the hours between 8 a.m. and 9 p.m., but the rule applies to the recipient's local time, not the agent's. If you are running an open house in one state and follow up with a visitor who lives in another time zone, you need to check the clock where they live, not where you are. Many agents make calls or send texts after hours without realizing the risk.

Time zone mix-ups

If your open house is near a state border or in a region where visitors may have out-of-area phone numbers, assume the area code reflects the recipient's time zone unless you know otherwise. Some CRM platforms can look up area codes for you, but manual mistakes are common. You are responsible for getting it right, calling at 8:30 p.m. in your home time zone may be after the permitted hours in the visitor's state.

State-specific calling windows

Several states further restrict the calling window. For example, some states limit calls to 8 p.m. or ban weekend marketing calls entirely. Always check the rules for the state where the visitor resides. If you use a manual call log or your own phone, put a note by out-of-state numbers to check the time before dialing.

See how FoyerSignIn handles this for residential real estate

Mistake six: losing an opt out because it arrived as a reply text, not a call

Opt out instructions must be honored, no matter how they arrive. Many agents expect opt outs to come by email or through a website, but most consumers simply reply "stop" or "unsubscribe" to a text. If you do not monitor reply texts, you may miss an opt out and continue sending messages after a clear request to stop. This is a common source of complaints and lawsuits.

What counts as a valid opt out?

The law requires you to honor any reasonable way a consumer tries to stop further texts or calls. A reply text saying "stop," "unsubscribe," or even "no thanks" is enough. You must stop all marketing messages to that number, and you must act within a reasonable time, usually within ten days. Failure to remove a number after an opt out is one of the most common violations brought by regulators and class action attorneys.

Systems and record keeping

If you use a texting platform, check that it automatically suppresses numbers after an opt out reply. If you send texts from your personal phone, save screen shots of opt out messages and make sure you update your contact list before sending anything else. Many agents lose track of opt outs because they do not have a central list of "do not contact" numbers. This leaves them exposed in the event of a complaint.

Writing consent language into the sign in so your follow up is defensible

The best way to avoid compliance mistakes is to build consent language into your open house sign in process. This means adding a clear, separate statement where visitors agree to receive marketing communications by text, call, or email. The language should specify who will contact them (you, your team, or your brokerage) and how: by phone, text, or email. The option to opt out at any time should be stated clearly, and a summary of your privacy policy should be available in writing.

Use a checkbox or digital signature, not just a name and number field. The consent should not be bundled with other agreements, such as disclosures about the property. Each visitor must have the chance to say yes or no to follow up, and the record of their decision must be saved and accessible if challenged. This protects you if a visitor later claims they never agreed to be contacted, or if you need to prove your compliance during a brokerage audit.

Tablet sign in platforms make it easier to manage this process. They can capture digital signatures, time stamps, and store consent records securely. Many also automate the required opt out language for emails and texts, and suppress numbers after a visitor opts out. They help you keep up with changing state and federal rules without adding paperwork or manual tracking. For agents and small teams, these tools reduce the risk of follow up mistakes and free up time for real conversations with real prospects.