BARRISTER'S BRIEFINGS: ‘Buyer Love Letters’

Leon Cameron, Esq. | February 2018

It’s February and love is in the air. For buyers interested in the right home, it may mean that they put quill to paper and craft the perfect “love letter.” Typically, these letters are addressed to the seller, and sometimes the listing agent is also included. Realtors, and all real estate licensees, must be particularly careful with respect to these types of correspondence.

A buyer love letter typically occurs in a multiple bidding situation where a prospective buyer tries to push their offer to the forefront. By penning a letter to the seller and/or agent, the prospective buyer usually describes why they wish to purchase the property. A buyer love letter does not constitute a fair housing violation if only the property is described and what desirable features of the property entice the buyer. A buyer is more than free to discuss kitchens, patios and even the historical elements of the home. All such descriptions are not a violation of public policy, including but not limited to, fair housing law.

What runs afoul of fair housing mandates is when the demographic characteristics of the buyer(s) are described. For instance, a letter that includes a statement such as “me, my wife and children can all envision ourselves in this home” invokes fair housing considerations under both federal and state law (for familial status and marital status, respectively). The writer may be well intentioned, but ultimately that does not speak to the legal consideration at hand.

What must be considered is whether protected classes are mentioned, even briefly, in the letter. If so, it may be a violation of the fair housing laws if a prospective buyer is either approved, or rejected, as the case may be, based upon the buyer’s inclusion in a protected class. Analogously, if a letter mentions the seller(s) membership in a protected class, the letter is similarly problematic. If the buyers write that “they always envisioned buying their first home from a fellow ______(fill in a protected class),” fair housing laws can be just as easily violated should the seller’s decision making process be influenced.

Realtors, and all real estate licensees, should be acutely aware of their rights and obligations pursuant to these love letters. Of course, under both the Realtor Code of Ethics as well as state license law, all offers must be presented up until the point of closing. The same need not be said for buyer letters. In fact, it may be most prudent to return a buyer love letter directly to the buyer without reading the contents therein, should a listing agent be served with one. Likewise, it may be prudent for listing brokers and agents to advise their seller clients of the same course of action should they receive such a letter. By taking such prudent steps, sellers and seller fiduciaries would be served well by lessening their legal liabilities.

Editor’s Note: The foregoing is for informational purposes only. For a legal opinion specific to your situation, please consult with an attorney-at-law in your jurisdiction.

 

Leon Cameron, Esq.
Leon Cameron, Esq., is Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.