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This article last updated February 24, 2022.
While we talk a lot about fair housing issues, buyer love letters have largely escaped official scrutiny as a source of compliance problems. Still, for many, the letters are seen as potential violations and both buyer agents and listing agents are often advised to avoid them.
Last week’s Pulse responses to the question “How are you handling buyer love letters?” offered a great example of the divisions among real estate professionals, with some saying never, others saying always, and still others coming down on the side of careful and compliant use of the letters when appropriate.
Even though love letters pose a concern for fair housing, there’s nothing illegal about a buyer writing a personal letter to the seller. Furthermore, buyer love letters haven’t been a concern for the federal fair housing testers.
The real issue is not the “love letter” itself, but the type of information you can and cannot include that conforms to the fair housing laws. Unfortunately, many agents who write these letters do violate the fair housing laws.
The Fair Housing Act
According to Department of Housing and Urban Development (HUD), the Fair Housing Act protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance or engaging in other housing-related activities. Additional protections apply to federally assisted housing.
Who is protected?
The Fair Housing Act of 1968 and the Fair Housing Act Amendments prohibits discrimination in housing because of:
- Race
- Color
- National Origin
- Religion
- Sex
- Familial Status
- Age
- Disability
The evolution of the ‘buyer love letter’
I started training a “cover letter” or “prelude to the offer” back in the late 1980s when the Los Angeles market was experiencing a multiple-offer frenzy much like what most of the nation is experiencing today.
The cover letter was a way to make your buyers stand out from the competition. It was also a way to help sellers and their listing agents determine which offer was strongest and would be most likely to close. The primary focus was on providing the sellers with the relevant financial information they would need to make that decision.
Where ‘love letters’ run afoul of the fair housing laws
Today, the focus on financials has been replaced with more of an emotional pitch based on the personal characteristics of the buyers. It’s these emotional pitches that often run afoul of the fair housing laws.
To illustrate this point, when I looked at over 100 online templates for “buyer letter to sellers” only two of them included pictures with people of color, and only one referenced a single person as the buyer. Moreover, the descriptions of the families in the photos were all young couples with cute children and often a dog.
The problems with banning buyer letters to the seller
Given that buyer love letters can be fraught with fair housing violations, should the practice be banned entirely? Because these letters are currently legal, banning them doesn’t appear to be an option.
Furthermore, those who are demanding an end to all buyer letters to sellers are making several unsubstantiated assumptions:
- The listing agents/supervising broker are not reviewing the “love letters” before presenting the offers to the seller.
- Even if the agents/supervising broker are reviewing the letters, they would be unable to differentiate which letters violated fair housing laws.
- If they did review the letters and found a fair housing violation, the agents/supervising broker would do nothing about the situation.
Challenges for listing agents
Buyer love letters can be particularly challenging for listing agents, especially if one letter violates the fair housing laws, and one or more other letters do not. Specifically:
- Should the agent who made the mistake be allowed to correct it, or should that letter be totally disallowed due to the fair housing violation?
- Does the listing agent even have the right to refuse to present a buyer letter that does follow fair housing laws? In fact, does the listing agent even have the right to make that decision given that this practice is currently legal?
- How should listing agents handle the situation where the buyer writes the letter, and it’s the buyers who violate fair housing laws?
Key points to remember
- When you represent the buyer, providing relevant financial information to the listing agent and the seller will help your offer stand out.
- Adding what features the buyer likes is appropriate as long as there is no reference to any of the protected classes above.
- Pictures of the buyers can be used to determine age, race, ethnicity, etc. which in turn can result in discrimination.
- If you’re in a multiple-offer situation, have your broker review any buyer love letters before presenting the offers to the seller. If your broker has a question, contact a fair housing attorney or your state association’s legal hotline to verify if there is an issue as well as what to do about it.
Bernice Ross, President and CEO of BrokerageUP and RealEstateCoach.com, is a national speaker, author and trainer with over 1,000 published articles. Learn about her broker/manager training programs designed for women, by women, at BrokerageUp.com and her new agent sales training at RealEstateCoach.com/newagent.
