Love letters… “Dear Seller,  We love your house! I can just picture my children running down the stairs on Christmas morning for years to come. We are so blessed to have grandparents visit often and there is enough room for our growing family in this perfect layout. We hope our family can enjoy and care for this home as much as you did over the years”  – Potential Buyer This letter not only reveals the potential buyer’s familial status, but also their religion, both of which are protected characteristics under fair housing laws. Using protected characteristics as a basis to accept or reject an offer, as opposed to price and terms, would violate the Fair Housing Act.

What could possibly be wrong with love letters?  Those little notes that accompany offers from potential buyers may be unwittingly violating fair housing laws by those receiving and/or reading them. While they may seem harmless, these letters often contain personal information and reveal characteristics of the buyer, such as race, religion, or familial status, which could then be used, knowingly or through unconscious bias, as an unlawful basis for a seller’s decision to accept or reject an offer.

Upholding Fair Housing laws isn’t just something that real estate agents must do – it is a legal obligation that also applies to sellers, landlords, property managers, mortgage brokers, and anyone involved in real estate transactions.

A seller or seller’s agent can’t tell if a letter contains information about a protected class unless they receive and read it – and that very act exposes both to liability.  No one involved in housing rental or sale can discriminate against a protected class, which is defined in Massachusetts law as person’s: race, national origin, religion, handicap (disability), age, sexual orientation, gender identity; as well as housing specific rental housing protections for: marital status, children, veteran status, and public assistance.

The Massachusetts Commission on Discrimination (MCAD) investigates complaints and civil lawsuits can be filed against offenders.  In a typical year, about 3,000 discrimination claims are filed to the MCAD and penalties start at $10,000 and that doesn’t involve legal action that could be taken.  Therefore, it is incredibility important for all parties to a real estate transaction make sure they are safeguarding against discrimination in all forms. This truly ensures that homeownership and rentals are equal and accessible to all citizens.

Consider these best practices to protect yourselves from fair housing liability:

• All agents should educate clients about the fair housing laws and the pitfalls of buyer love letters.
• Sellers can direct their agents they should NOT deliver buyer love letters with an offer, and the agent should then advise others that no buyer love letters will be accepted as part of the MLS listing.
• A seller’s decision to accept or reject an offer should be based on objective criteria only.
• In this hot market, ask your seller’s agent to use a multiple offer worksheet (available from the Berkshire Board of REALTORS at no cost) to assist you in analyzing all of the offer terms on an equal basis.
• If an agent’s buyer client insists on drafting a buyer love letter, do not help your client draft or deliver it.
• All agents should avoid reading any love letter drafted or received by your client.
• Listing agents should document all offers received and the seller’s objective reason for accepting an offer.
• If possible, listing agents should respond equally to all offers received with the date and time they were presented for review by the seller, especially when asked.

Even if the REALTOR or Sellers do NOT discriminate based on what was written in the love letter, there can be the perception of bias and a claim made of discrimination.  Consider a real estate agent was found in violation of Fair Housing laws and paid extensive court costs and penalties by making small talk and simply asking, “So Gladys, where are you from?” Gladys answered “Venezuela”.  When Gladys didn’t get the apartment, she filed a discrimination claim.  Despite the hearing finding the comment had no intention to be discriminatory, and did not actually result in discrimination, the inquiry itself was found to be a per se violation of the statute and the regulation, because of protections afforded to buyers and tenants based on country of origin.

Neighborhood segregation, discrimination, steering and racial injustice thrive if you are looking for the “right people” to purchase a home, rather than the right terms and offer details that best meet a seller’s need.

Federal and State Fair Housing and Anti-Discrimination Laws

Be aware that properties / classes may be exempt under some laws yet covered by others.

For more information:

• Massachusetts Commission on Discrimination (MCAD)
• Housing and Urban Development (HUD)