Season 2 Episode 2: Oregon Ban on Love Letters

Listen to Season 2, Episode 2 (aka Episode 24 overall of the podcast): Oregon Ban on Love Letters

On this episode of Agents Unfiltered, we’re talking about the recent case of Oregon banning love letters. We discuss fair housing laws, the pro’s and con’s of writing love letters, what makes a good love letter, and our opinions on this love letter ban, which ended up being overturned.

Do you have a particular topic you want us to discuss? Reach out on Instagram @agentsunfiltered

ABOUT US -🎙 Agents Unfiltered SEASON 2 is about a deep dive into some wild real estate cases and give our take! Get ready for some relatable and relevant information about “The Do’s, the Don’ts & the What The Fuck’s of Real Estate.”

PODCAST TRANSCRIPT:

Hey everyone, welcome to agents unfiltered, where we talk about the do’s, the don’ts, and the what the fuck’s of real estate. We are Ali, Danielle, and Cassie. Join the three of us every week as we deep dive into some wild real estate cases and give our take. We are not attorneys and want to make it clear that this podcast or any linked materials should not be construed as legal advice. Nor is this information a substitute for professional expertise. We are not lawyers, doctors, financial advisors, and mortgage lenders, but we are your new BFFs

Danielle: So I have a case today, okay and it is known as the Oregon Love Letter ban.

Ali: I have to listen first. I have a lot of opinions on this.

Danielle: I’m going to start out by chatting about love letters because I feel like most people know what those are, but I kind of want to go over the pitfalls that we can fall into with them. So obviously love letters are when a buyer writes a love letter about the house to the seller as a way to increase their chances of getting the home as opposed to just financial gain for the seller or whatnot. I feel like we’ve all had instances where a love letter has helped, and also where a love letter has not helped or like I’ve had sellers that are like, Oh God, they wrote it, like they hate that they wrote a love letter. I also have sellers that are like, Oh my gosh, like I totally want them to get the home and it’s such a personal thing, right? So kind of where this started was in Oregon, the Real Estate Commissioner wanted to get into law, so they passed a bill. The ban was for agents who were not allowed to accept any communication from potential buyers other than customary documents. The buyers could write them. But then the listing agent was not allowed to accept any love letters. So really put it all on the listing agent.

Cassie: So it wasn’t really that the buyers couldn’t write the love letters, it’s that the listing agent couldn’t take it and give it to the sellers?

Danielle: Correct. That was the bill that was passed and basically when it was passed, it just switched up the duties as you know, our CW, it switched up the duties to what the seller’s agent had to do for the seller. So that’s kind of where it came from. It was a bill, it wasn’t a lawsuit to start. That got passed, or that bill came out in 2021 and it was to take effect on January 1, 2022.

Ali: What a time, especially when there are a million offers and buyers just wanted to make there’s a little bit different.

Danielle: Just right in the thick of it, but I think that’s what spurred this because remember, in Washington State, we heard about it and then that was going to come down the pipeline for us in Washington State, and Rhode Island also had something kind of similar, which I don’t know if that one’s still standing. So anyways, before it came into effect in January of 2022, total Real Estate Group from Bend, Oregon filed a lawsuit versus Strode who was the Real Estate Commissioner in 2021, but it wasn’t heard until 2022. So the law did take effect in January of that year, and then there were a couple of months before it was ruled on.

Ali: I’m on the edge of my seat. Do they have love letters again?

Danielle: Well we are not in Oregon so it doesn’t matter.

Ali: Ah, I’m sorry for my homies in Oregon.

Danielle: Oh, my goodness. Okay, this is what they argued. So the whole intent of this original bill was to avoid discrimination, especially based on the fair housing laws, right? That was the whole point of it, which I want to go into in a minute. Total real estate groups’ argument, which I also think is very valid, is that it does the opposite because underprivileged buyers may not have the same amount of cash or as much of a down payment, or they need help with closing costs, where it’s not a financial gain for the sellers can write these letters and then hopefully appeal to the sellers so they’re making a decision on something other than the financial gain. It’s so interesting because I was reading an interview from an agent in Oregon, it was interviewed from a paper during this time, and he talked about how he’s gone into appointments and sellers have basically said, that doesn’t look like a family who would want to be in this neighborhood or something like that.

Cassie: Oh my gosh.

Danielle: I have never had that happen. Or where sellers have asked for pictures of people. I have also never had that happen. So I’ve never personally seen discrimination based on a lot of the things in fair housing, but I also think about how many times I’ve had people say, I really hope a family buys my home. Yes, which is also protected under fair housing, you know, and obviously, I don’t tell them but like most of the time, when letters are written, they’re talking about whether or not they have a family. So like I get both sides of it, I really do, especially when it comes to fair housing, like looking, they researched a certain amount of letters, I think it was like 37 different letters that were written and they kind of broke them down. So many of them had fair housing violations. 27 examples of letters, 13 of the letters included photographs of prospective buyers.

Ali: I always cut the photos off before giving them to the sellers.

Cassie: I’ve gotten it before, and I’ve just, like, copied and pasted it onto a separate thing, because I’m like you’ve got a super cute smile, but we are not including that.

Danielle: 23 directly in the text or through photographs revealed information about the familial status. So 23 or 27. That’s a high amount. 14 made specific reference to marital status. 12 revealed information about sexual orientation, so like, that’s a lot. I get where it’s coming from as far as fair housing and I think personally, think it’s really hard because it really just depends on the seller.

Ali: Okay. But also at the same time, like, if you’re gonna write a love letter, and you say certain things about yourself, you’re trying to appeal to them, but you also have to understand that unfortunately, it might do the opposite. It’s kind of your own risk that you’re taking.

Danielle: Exactly. That’s what I mean. It really depends, is the seller, somebody who’s going to make a decision based on something that’s, like, protected under fair housing or are they someone who is not going to discriminate? I don’t know how else to put that, but I feel like that’s really what it comes down to. We’re not in our sellers’ heads. I do think we should talk about like, what is good to put in letters and not because I do think that is a really risky thing that really can be an issue for everyone involved, really. So that was what the defense brought Strode, the Real Estate Commissioner brought when they were sued by the total Real Estate Group. Total Real Estate Group spoke about how it violated first amendment rights and all the other things I talked about, like how sellers can still be contacted by buyers, and all of that kind of stuff. It didn’t actually stop the buyer from writing them, t just stopped the agent from giving it to them. The wording of it, like they can’t accept communication from potential buyers, other than customary documents, is that it’s very wide.

Cassie: What is the customary document?

Ali: See, automatically in my head I’m like loophole

Danielle: But that’s the hard part, like and then you probably have real estate agents trying to slip it in different places.

Cassie: That would be me. So much gray area.

Danielle: So in hearing all the arguments, originally they put a pause on the bill, essentially, while they listened to arguments and after listening to arguments, the district court found that both the agents and their client’s First Amendment protections were burdened. So it was overturned, the bill or we removed overturned.

Ali: Congrats Oregon.

Danielle: They said it restricted buyer’s speech directly and restricted agents from drafting offer cover letters, because think about that, how often do we put something in like the email? That’s not part of it, but we’re like, hey, our clients really loved the home. We’re just trying to prop it up, but it restricts that.

Cassie: Interesting.

Danielle: It also restricted from assisting our clients in drafting the letters, which really, if we’re doing our job, if we are assisting our clients in drafting letters, we’re helping them avoid things that are going to be fair housing issues.

Ali: If I wanted to be strictly business, I would have done finance. Half of the real estate is literally about people.

Danielle: It’s so true, and that is something that one of the agents who was interviewed mentioned, like real estate is the meaning of financial gain, and emotional. You can’t fully separate that.

Cassie: It’s so poetic.

Danielle: I thought that that was really interesting. So it is overturned. I did find another thing that I found interesting about how they ruled whether or not violated First Amendment speech, which was through the Supreme Court’s central Hudson test. I know, Ali is like what are we getting into? I’m not gonna go through it all.

Ali: I’m like, dang.

Danielle: Commercial entities and they used to have first amendment rights, basically. In 1942, they ruled that they didn’t, and then there was a case, I believe it was in 1980, that was Central Hudson, which is the electric company on the east coast, in their advertising it basically was ruled that they did have first amendment rights and then there’s like a test. There’s like these four questions that they asked, and so that’s how they determined.

Cassie: Interesting.

Danielle: I thought it was interesting. I’m curious to see where other states go with these letters. I mean, I know the markets cooled a little bit and so we’re probably not seeing each other. I know, our legal counsel and our state has suggested not to do them. I feel like it’s a real tightrope to walk.

Cassie: It’s so hard. Fair housing stuff is so hard.

Danielle: Well, and it’s hard because like we’ve all been on so many different sides of these. I had this one couple, I was selling their home and we had a bunch of different letters with offers. I did not read the letters, because I didn’t want to know what they said until I asked my clients if they wanted to read them or not. So I printed them all, and stuck them in the folder and did that because they’re sent, you know, so we have to let our clients know we have them. That’s part of our duty, we have to provide any information. My client said, we don’t want to read the letters, we just want to make a decision and then after they made the decision, they were like, okay, we want to read the letter from the one that we accepted. They read that one letter after they made the decision. They were like, so excited, and blah, blah, blah. And so then afterward, like I read the other letter, because I was like, just because I was curious. They only wanted to read that one because they’d already made their decision and again, they were like, so excited. They were like, oh my gosh, we actually think we know, like their son or something I don’t know, or some connection there. But, the other letter was equally as great. Do you know what I mean? They were already in tears making this decision because it was so overwhelming for them and they felt bad that so many people were competing for their home, so I feel like the letters would have just torn them apart if they read them prior to making the decision.

Cassie: I have one instance, and it’s probably like my favorite home that I’ve ever sold. It was like this beautiful historical home with so much history, built in the 1800s, like Victorian style, was the first doctor’s office in that county, and my clients were huge history buffs, they really worked hard to like maintain all the history of the house, keep all the original Tiffany light fixtures.

Ali: Tiffany? I would keep those too.

Cassie: Yeah. It was freaking gorgeous. They did end up getting I think nine offers and there were letters. The offer that they picked was because the person mentioned, we love history, we are super interested in the history of this home, we’re going to maintain it, we love the garden and the yard, your secret garden. That was what decided it for my clients. That was the most important thing to them was that someone would take care of the history though.

Danielle: That is a perfectly written letter.

Cassie: There wasn’t any fair housing in it, it was just that they wanted to maintain the history and they were so excited to own a piece of history in the city that they loved.

Ali: Yeah, when I give parameters for love letters, I’m like, if you’re gonna write it, like be wary that you’re not, talking about necessarily like your gender, or all that kind of stuff, I’m like, however, like everyone loves a suck up. Everyone loves a brown-noser. Tell them how much you liked the carpet they picked or the cabinet color and all that, like, people love to know that you love.

Danielle: That is exactly the perfect way to put it. If you write a love letter to the home, not to the people it’s so much better.

Cassie: Like, this is why I love your home. This is what I envisioned for your home. I think that is where if you take yourself out of it, and just make it about the home itself, you’re gonna probably be okay and just leave as little personal information as possible.

Danielle: Because here’s the problem. And I think this is where it gets sticky and most of the time, like, we all walk away from not getting our offer accepted or whatever, and we move on and whatever, but the reality of the situation is if buyers put things in there that could be fair housing, it opens up this door of the seller making a decision not based on anything that it could be fair housing discrimination, but makes it and then it is viewed that way. Of course, you’re going to have sellers that could make it and discriminate, so it goes both ways, but you really open up that door and so I think that’s like the liability we have to make sure our sellers know is like, if you want to look at letters, if you want to accept these letters, that is a door you could potentially open and you got to decide if that’s what you want to go down, but it’s hard because that means we also can’t read them. After all, if we read them and we know, it is just creepy, I don’t know, I think it just is hard. It’s a hard thing. I understand where this bill was intended to go, but I also think I’m glad it was overturned. I do feel like that real estate company hit the nail on the head.

Ali: It’s a good tool when used properly.

Danielle: Exactly. So I’m glad that that’s where it stands and I’m hoping that the rest of the states follow because we had heard about it here for so long, and then nothing came of it.

Cassie: If there was a church across the street from a house because even if you’re writing a letter to the house, you could be like, I love that you’re across from the church, blah blah blah. Would that be like showing your religion?

Danielle: Not necessarily.

Cassie: Where is the line with that?

Danielle: I think it’s hard because like, they could like be across from the church because there are no neighbors there. You know, it’s not busy all the time. It’s not a business. It’s, you know, fairly busy a couple of days a week, it could be anything, they can love it because they’re part of that religion. But who knows? You know, I feel like that’s a little more acceptable than if you’re like, I’m Lutheran and that’s a whole different ball game.

Cassie: My other question with love letters and fair housing, specifically, when it comes to marital status, is if that’s already in the purchase and sale agreement, is it a fair housing violation, if you say, your letter, my wife, and I love your home.

Ali: That’s valid.

Danielle: That is valid, but here’s the thing. It’s not a fair housing violation to put it in the letter. It’s a fair housing violation to discriminate against someone because it’s in that letter.

Cassie: Oh, okay.

Danielle: You know what I’m saying? It’s on our purchase and sale for Title anyways, I don’t know if that’s like that in every state, but we do have that already. That’s not a problem to say that you have it. That’s the problem with the letters.

Cassie: I think if people are going to break fair housing, they are going to go out of their way to do it. I had this one instance, it just made me feel so gross. I was representing the buyer and I was doing the final walkthrough virtually because my clients weren’t in the area. The seller ended up being there and he straight up asked me the ethnicity of my clients. Do you remember that? I called you after I was so upset. I was like, I can’t tell you that. That’s fair housing. He’s like, I just figured I’d ask. I just want to know who’s gonna be living here and if they’re gonna take care of my property, and I was like, What in the actual?

Ali: Well don’t sell your house to any little blonde girl because I don’t do shit for maintenance outside.

Cassie: I’m like if people are going to violate fair housing.

Danielle: Well, that’s the thing, you don’t have to disclose any of that stuff to you, but he’s not going to violate, like, you’re already signed around. They’re moving in.

Cassie: I know. It was a few days that close and I said, like, I can’t answer that. That’s a fair housing issue.

Danielle: Not really. More like I don’t want to answer you, so I’m gonna say whatever I can.

Cassie: I would never.

Danielle: At the end of the day, again, fair housing issues if they are going to discriminate. Now, if he’s that, if you said, oh, they’re, you know, Caucasian or whatever, right? And he said, Oh, I’m pulling the plugin. I don’t want to sell to these people. That would be a fair housing violation. Although, we always want to say like, a 10-foot pole.

Cassie: I was like, a 10-foot pole, I’m not answering that question.

Danielle: Also, like, really? That’s just a very, like ridiculous question to ask.

Cassie, Like, why does it matter?

Danielle: That’s just a very ignorant question for him, and I think we just like, there’s no point answering anyways. Because who knows where was he going with that?

Ali: My mind I ever even think to be like, oh, who are these people?

Danielle: People are weird. The more we can avoid dealing with that stuff. I haven’t heard of this happening in a long time, but I know, April used to be a big month with fair housing. They would have people go out to open houses and stuff like that, you get phone calls. If you get fined for a Fair Housing violation, that’s a lot of money. They do not play around for good reason. I got this phone call from this lady who is like a client, just this random phone call, and she asked me about things like the crime in the area, or by this one home or something like that and I said, you know what, I don’t actually know. I can send you this website where you can look it up through our county and blah, blah, blah. She asked me some other questions. I forget what they were, but I was just like, What the hell, who are you? I was like, you know, I’m really sorry. Like, I really can’t give you that information, but I’m happy to direct you to the websites or whatever, so you can look it up for yourself. She got so mad. She was like, I don’t want to deal with some PC realtor and blah, blah, blah. I was like, first of all, either you are trying to just push me and you’re trying to get me some sort of violation, which I’m not going for, or second of all, I don’t want you as a client anyway if this is how you’re going to act on our first phone call.

Ali: You can be someone else’s problem.

Danielle: I don’t know if it was a test or something, but I never heard from her again. I was like, man, like, I just felt like I was being tested, but I don’t know. It is a sting because it’s really going over a line. This is a little excessive, pushing and pushing and then finally, like, okay, whatever, lady. Fair housing is not something you want to mess with.

Cassie: Which is good, they should be in place. They are very important. We just need to ensure we are doing our part.

Danielle: Yes, doing our part to make sure our buyers are adhering to it when they’re writing letters and that our sellers are aware of the potential liabilities, but they can be very beneficial when used the right way.

Cassie: I’ve had to send some embarrassing love letters. There are some love letters where I’m like, how do I even help them with this? And then I just have to send it. I once apologized to an agent and I was just like, here’s this, but it was something that I knew, and I was just like, I yeah, I don’t know.

Danielle: I have a client right now who’s drafting one. They are writing a low offer and they’re going to explain why and so it’s not really a love letter, but it does help. They are going to talk about historical preservation and how much they’re going to preserve it, but they also could explain why they’re offering lower prices and I think stuff like that can help it. Like the meeting of the minds instead of one party versus another. It’s like, Oh, I see you as a human being on the other side. It’ll be interesting to see where they go from here.

Cassie: Yes. So interesting to watch.

Ali: Nice try Oregon.

Danielle: We’ll see you guys next time. Make sure you follow us on socials. We are @ agents unfiltered on Tiktok and Instagram. If you do want to follow our brokerage we’re at Touchstone.Re on Instagram.