Compliance

What Counts as Prior Express Written Consent for SMS?

Prior express written consent for SMS means a clear, unambiguous agreement from a person to receive text messages from you. This agreement must be in writing and signed, either physically or electronically, by the recipient.

October 12, 2026 · 3 min read

Why prior express written consent matters for investors

Understanding prior express written consent is crucial for any investor using text messages to contact sellers. Without it, you risk violating consumer protection laws, which can lead to significant penalties. This is not legal advice, but a practical consideration for your outreach efforts.

Even if you are dealing with motivated sellers who replied to a text message, understanding the boundaries of consent helps you manage your communication strategy responsibly. It ensures you are only reaching out to individuals who have clearly indicated a willingness to receive your messages.

What “in writing” and “signed” actually mean

When the law refers to "in writing" and "signed" for consent, it does not always mean a physical pen-and-paper signature. Electronic signatures are widely accepted, provided they demonstrate the consumer's intent to sign and an association with the record.

This could be an online form where a box is checked, a confirmation email, or even a text message reply that explicitly states agreement. The key is that the agreement must be clear, unambiguous, and attributable to the individual.

Examples of valid consent collection

Valid consent can be collected through various methods. For instance, a web form where a seller inputs his or her phone number and explicitly checks a box saying, "I agree to receive text messages from [Your Company Name]" is generally considered valid.

Another example is a text message exchange where you clearly ask for consent to send future messages, and the seller replies with an affirmative keyword like "YES" or "AGREE." The consent should be specific to the type of messages you intend to send.

Avoiding implied consent traps

Implied consent, such as assuming a seller wants texts just because he or she gave you a phone number for a different purpose, is not enough for TCPA compliance. You need an explicit agreement for text messages.

Never assume that an initial text reply from a lead provider like Speed to Seller gives you blanket consent for all future marketing texts. That initial reply indicates interest in selling, but further consent may be required for ongoing, broader communications.

Documentation and record-keeping

Keep meticulous records of how and when each seller provided consent. This includes screenshots of web forms, timestamps of text message opt-ins, and any other relevant communication.

This documentation is your evidence if ever questioned about your compliance practices. Store these records in your CRM or a dedicated system where they can be easily retrieved.

When to refresh consent

Even with valid consent, it is good practice to periodically refresh it, especially if there has been a long period of inactivity or if your messaging content changes significantly. This helps ensure ongoing compliance and maintains a healthy relationship with your leads.

For example, if a seller has not engaged with you for six months, it might be wise to send a re-engagement text that also re-confirms his or her consent to receive further messages.

Questions people ask

Can a verbal agreement be considered prior express written consent?

No, a verbal agreement alone typically does not count as prior express written consent for text messages under most interpretations of consumer protection laws. The consent needs to be clearly documented in writing.

If a seller texts me first, is that consent?

An initial text from a seller indicates an interest in communicating with you regarding his or her property. It generally provides consent for a direct conversation about that specific inquiry, but it does not necessarily grant broad consent for ongoing marketing messages without further explicit agreement.

Do I need separate consent for different types of messages?

Yes, it is best practice to obtain consent that is specific to the type of messages you plan to send. If your initial consent was for property inquiries, and you later want to send promotional content, you should seek new, specific consent for those marketing messages.