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Love Letters and Implicit Bias word balloonFor years, Realtors have encouraged their home buyers to write “love letters” to go with their purchase offer on the home the buyers were trying to buy. The idea was to be more likeable so that the sellers would want to sell to them, as opposed to any competing home buyers. But as of now, the guidance from the National Association of Realtors is different: no more love letters.

What is wrong with buyer love letters?

The U.S. Fair Housing Act protects home buyers and renters from discrimination or bias under protected categories of race, color, national origin, religion, sex, familial status, and disability. (In California, there are even more protected areas.) Put another way, when a home seller looks at a buyer package, the decision should be based on the offer price and terms, not on who the buyers are.

The concern with love letters is the risk of implicit bias: that the sellers would like or dislike buyers, even unconsciously, because of non-contractual facets that are protected.  While it’s not illegal for a doctor to want to sell to another doctor, it is illegal for one member of a religious group to give preferential treatment to another member of the same religious group. It’s also illegal to give preferential treatment to buyers who have children versus those who do not. Photos are especially risky as they may enable things from the protected class list to be known.

Last October the National Association of Realtors published an article for its members in Realtor Magazine on this topic, Why a Buyer Love Letter Could Turn Into a Poison Pen. This short piece admonishes that even innocuous sounding statements are problematic:

Even a mention within a letter of envisioning “children running down the stairs on Christmas morning” could stir up trouble. After all, such a statement reveals the buyer’s familial status and religion, which are both protected under fair housing laws.

The quote above makes it plain that a hopeful comment could easily trespass into fair housing discriminatory language.

Since October, there have been many publications on this topic and it was widely discussed at the NAR annual conference (held online this last fall), too.
Admittedly, I was a strong proponent of buyer love letters until now. My thinking was that it showed more effort and more interest when the would-be home owners told the sellers why they wanted that house, townhome, or condo. When competing in multiple offer situations, I considered the personal letter to be a plus. But, I think the NAR is correct to say that these are potentially risky in terms of implicit bias and fair housing violations. We do  not want to be complicit in housing discrimination, and so this practice must end – or possibly just change dramatically.

What are the protected classes in California?

Remember, it’s illegal to have bias for or against any of these classes in California (the list below is from the state):
California law protects individuals from illegal discrimination by housing providers based on the following:

  • Race, color
  • Ancestry, national origin
  • Citizenship, immigration status*
  • Primary language*
  • Age*
  • Religion
  • Disability, mental or physical
  • Sex, gender
  • Sexual orientation
  • Gender identity, gender expression
  • Genetic information
  • Marital status
  • Familial status
  • Source of income
  • Military or veteran status

What are real estate agents and firms doing in response to the NAR’s new guidance on love letters?

Some brokerages now have a blanket policy that buyer letters are not to be submitted with offers. Some real estate licensees also have a blanket policy that they do not want letters from buyers included with the purchase offer. One of my current seller clients is a Realtor in another state, and she tells me that there are two fair housing lawsuits happening there right now, and both of them include buyer letters.

Others are more nuanced and say that it’s up to the seller to decide – and that the listing agent must clearly explain the fair housing laws and risk of implicit bias.

Some buyers really want to personalize their bid with an offer letter. If the listing agent doesn’t prohibit it, the buyers’ agent will want to give guidance on what to avoid (please, no photos!) and what’s safe to say. If you avoid the protected classes, it may be OK to include a letter. In those cases, please make sure that you don’t reveal things like familial status, handicap, national origin, etc.

OK: “We love the natural light in the home.” “The layout provides space for both of us to have a home office.” “Your remodeling is exactly what we were looking for!” “We enjoy gardening and appreciate your stunning roses especially.”  “You did so many repairs after having your inspections done that we feel like we are buying a worry free home – thank you!”

Not OK: “This is close to our church / synagogue / mosque / temple / house of worship”. “We are expecting twins, and the extra large bedrooms will be so appreciated.” “The extra primary suite will be great for family visiting from xyz country.”

One more note on this – the buyers’ agent should also avoid this forbidden language in their cover letter, too. I recently received offers on a listing and one of the agents wrote a cover note that was a landmine of violations.

What else can be done besides buyer letters?

What else can be done to stand out? Buyer agents can connect with listing agents and help to foster good rapport and to see if there are things that the sellers want or need in the offer. Being responsible and considerate never go out of style! Escrows can be bumpy if either party does not stay on top of timelines, so making a good impression is helpful. There are things which could be shared, such as high credit scores or strong employment, that might give the listing agent (and therefore the sellers) confidence in the buyers’ ability to perform.  Above all, buyers and their real estate agents need to strategize to make their offers stand out on price and terms alone rather than the likeability factor attempted in the love letters.

Related Reading on love letters:

From NerdWallet: Why It’s Time to Dump Home Buyer Love Letters

From NAR: Love Letters or Liability Letters? 

HUD has a 24 page booklet which includes info on Fair Housing Violations, fines, and penalties: Fair Housing – Equal Opportunity for All