A highly competitive real estate market with low inventory and intense bidding wars means that buyers are willing to do anything in their attempts to persuade sellers to sell, including resorting to “love letters.” Love letters are letters that buyers write to sellers describing the reasons why the seller should pick them. The letters often include emotional narratives revealing the buyer’s familial status, religion, and other personal characteristics in hopes that the seller will be moved enough to sell the house to the buyer. Despite their seemingly harmless nature, the letters revealing protected characteristics could prompt serious violations of the Fair Housing Act (the “FHA”).
II. Fair Housing Act
The FHA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” A seller choosing a buyer for their property based on a love letter revealing protected characteristics of the buyer could violate the FHA because, under the statute, the seller is discriminating based on protected characteristics.
III. Oregon Bans Love Letters by Passing HB 2550
Earlier this year, Oregon became the first state in the United States to pass legislation banning real estate love letters. House Bill 2550 (H.B. 2550) explicitly cites the FHA as the rationale behind the ban and states that “a seller’s agent shall reject any communication other than customary documents in a real estate transaction, including photographs, provided by a buyer.” H.B. 2550 went into effect on January 1, 2022. Legislators enacted H.B. 2550 to ensure that love letters would not be used to trigger sellers’ use of “unlawful biases” during their decision-making process when deciding to whom they should sell their property.
Only thirty-two percent of Oregon’s Black and African-American populations are homeowners, compared to sixty-five percent of Oregonians in general. Although love letters are not the sole source of this disparity, the problem of implicit bias could exacerbate such disparities with sellers making decisions based on the revealed personal characteristics of buyers.
IV. Maryland’s Proposed Love Letter Legislation
On February 24, 2022, Maryland lawmakers introduced House Bill 1457 (H.B. 1457), which would ban any communication, such as love letters, that “contains personal information or characteristics of the prospective buyer[.]” Similar to Oregon’s legislation, the Maryland legislature intentionally drafted H.B. 1457 to prevent FHA violations.
V. First Amendment Issues
Critics of the love letter ban claim that the First Amendment may make the new law unconstitutional. They argue that banning love letters is a restriction on free speech that cannot be justified “unless it is absolutely necessary.” In fact, some critics argue that love letters actually “benefit less privileged individuals by giving them a shot at a home that otherwise would be out of reach.” Love letters may provide people who are eager to find and purchase a home, but who are unable to out-bid other buyers financially, an opportunity to communicate with the seller and explain their situation.
Another critique of love letter bans is that, because there has not been a single lawsuit or Fair Housing complaint concerning discrimination due to love letters, there is no need for love letter bans such as H.B. 2550. The burden of proof to bring a valid Fair Housing complaint is very high. A complainant must prove that a seller actually made a decision based on a protected characteristic. According to Bryan Greene, the Vice President of Policy Advocacy for the National Association of Realtors, the liability is “mostly theoretical.”
VI. Recommendations for Dealing with Love Letters
Despite the increasing trend of buyers sending love letters in competitive real estate markets, many buyers have not had great success, even when the letters state their enthusiasm for objective facts relating to the property. Realtors, brokers, and real estate attorneys should advise seller-clients and colleagues not to accept love letters to avoid the risk of housing discrimination and bias pursuant to the FHA.
Given that love letters are only banned in Oregon as of now, if a buyer in a different state insists on sending a letter to a seller, it is best to draft letters describing the buyer’s interest in a particular feature of the house or the neighborhood rather than writing a love letter narrative revealing personal characteristics of the buyer. Even using general characteristics, such as saying “we could see our children playing in the park next door,” could be a potential violation of the FHA because such a general phrase about children still reveals familial status. The National Association of Realtors recommends that all realtors, no matter the jurisdiction, educate their clients about the shortcomings and consequences of love letters and refuse any client demands to draft or deliver love letters.
Although Oregon is currently the only state to ban real estate love letters, other legislatures across the nation may, and should, follow suit to ban the practice to promote the compelling interest of keeping real estate transactions free from potential bias and discrimination. Sellers must accept or reject offers on purely objective criteria, so providing love letters to sellers only facilitates the potential of sellers choosing or avoiding certain buyers based on protected characteristics. Despite the high burden of proof for parties filing Fair Housing complaints, sellers should be very cautious of love letters to avoid issues of implicit bias, as these biases ultimately cause more disparity in homeownership.
*Alina Pargamanik is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Alina serves as Secretary of the Women’s Bar Association and Secretary of the Real Estate Law Association. She is also a member of the Royal Graham Shannonhouse III Honor Society and a proud Towson University alumna. Currently, Alina is a legal extern at Mariner Finance. This summer, Alina will be joining Batoff Associates as a summer associate working on various corporate, real estate, and estate planning matters.
 Love Letters or Liability Letters?, Nat’l Assoc. of Realtors (Oct. 23, 2020), https://www.nar.realtor/fair-housing-corner/love-letters-or-liability-letters.
 See id.
 See id.
 Michele Lerner, Home Buyer Love Letters Could Create Legal Liability, Real Estate Group Warns, Wash. Post (Mar. 3, 2021), https://www.washingtonpost.com/business/2021/03/03/home-buyer-love-letters-could-create-legal-liability-real-estate-group-warns/.
 Fair Housing Act § 804(b), 42 U.S.C. § 3604.
 See id.; see Lerner, supra note 4.
 H.B. 2550, 2021 Leg., 81st Sess. (Or. 2021); Jeffrey M. Schlossberg & John A. Snyder, Oregon Bans Home Buyers’ ‘Love Letters’ to Sellers, Nat’l L. Rev. (Aug. 26, 2021), https://www.natlawreview.com/article/oregon-bans-home-buyers-love-letters-to-sellers.
 H.B. 2550.
 Or. Rev. Stat. Ann. § 696.805 (West 2022).
 Schlossberg & Snyder, supra note 7.
 Allison Frost, Oregon 1st to Ban Homebuyer Love Letters, OPB (Sept. 7, 2021, 5:57 PM), https://www.opb.org/article/2021/08/31/think-out-loud-homeowner-love-letters/.
 See id.
 H.B. 1457, 2022 Leg., 444th Sess. (Md. 2022).
 See id.
 See Christina Martin & Daniel Ortner, Opinion: Oregon Gives a Cold Shoulder to Love Letters, Oregonian (Sept. 15, 2021, 6:00 AM), https://www.oregonlive.com/opinion/2021/09/opinion-oregon-gives-a-cold-shoulder-to-love-letters.html.
 See id.
 See id.
 Frost, supra note 11.
 Martin & Ortner, supra note 15.
 See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 24 C.F.R. § 100 (2013).
 See id.
 Anna Bahney, Home Buyers Should Think Twice Before Sending a ‘Pick Me’ Letter to the Seller, CNN Bus. (May 20, 2021, 10:34 AM), https://www.cnn.com/2021/05/19/homes/love-letters-from-home-buyers/index.html.
 See Kate Petersen, My Real Estate Secret Weapon Didn’t Work. Or Did It?, N.Y. Times (Oct. 22, 2021), https://www.nytimes.com/2021/10/19/magazine/buyers-letter-real-estate.html.
 See Schlossberg & Snyder, supra note 7; Nat’l Assoc. of Realtors, supra note 1.
 See Schlossberg & Snyder, supra note 7.
 See id.
 Nat’l Assoc. of Realtors, supra note 1.
 See Schlossberg & Snyder, supra note 7.
 See Nat’l Assoc. of Realtors, supra note 1; Lerner, supra note 4.
 See Bahney, supra note 22.
2 thoughts on “Better Left Unsent: Real Estate “Love Letters” and Fair Housing Violations”
Interestingly, virtually a major real estate brokers use to train their agents to use ‘love letters’ because many sellers like knowing that while, yes we are selling our property, many would like to know that it is going to someone who will care for it.
Bruce W. Haupt, J.D. email@example.com 202-253-7300
On Sat, Mar 19, 2022, 8:55 AM University of Baltimore Law Review wrote:
> University of Baltimore Law Review Staff posted: ” *Alina Pargamanik I. > Introduction A highly competitive real estate market with low inventory and > intense bidding wars means that buyers are willing to do anything in their > attempts to persuade sellers to sell, including resorting to “love > letters.”” >
Traditionally, all major brokerage firms have encouraged the use of ‘love letters’ by purchasers. Perhaps an alternate approach would be to include something that is known to be of interest to the seller, i.e. season tickets for a sports team, the Met or even the Kennedy Center.