The very same week my husband and I got engaged, we saw the perfect condo. It was full of charming Edwardian details, close to sunny Duboce Park, and just within our budget. We were in love, in more ways than one. But we knew there were other suitors in the mix.
When the deadline came, our broker advised us to pen a letter alongside our offer, explaining who we were and what we adored about the property. With our recent engagement, we had such a cute story, and she thought it might just resonate with the sellers, who’d bought the home just a few years earlier, prior to starting their own family.
I don’t know if it was the letter — or the higher bid — but we got the condo.
Nearly 20 years later, the romance with so-called “buyer love letters” has fizzled. Nowadays, my once-engaging engagement story could be considered proof of implicit bias toward a certain age, sexual orientation, or marital or familial status — all protected classes under state law. Growing fears about discrimination lawsuits filed on behalf of jilted homebuyers have led lawyers to advise sellers not to accept such letters.
Here’s a little secret, though: There are still ways for hopeful buyers to connect to sellers while staying on the right side of fair housing laws. While most buyers’ agents no longer encourage love letters, some sneak them through at a client’s request — or backchannel with listing agents to spark a connection in a cutthroat market.
“In lieu of the letter, we’re able to, in an above-board way, communicate a little bit about the buyer,” said Alexander Lurie of City Real Estate. “We just need to be thoughtful about how we communicate those things.”
Beginning of the end
Buyers who haven’t been on the market in a while might be surprised by how much has changed. It was only five years ago that the California Association of Realtors issued its first official guidance advising sellers‘ agents not to accept love letters because of the potential for unconscious bias toward legally protected groups.
There’s a lengthy list of protected characteristics in California; among them are race, color, ancestry, national origin, religion, sex, sexual orientation, gender identity, gender expression, marital status, familial status, source of income, disability or medical condition, citizenship, primary language, immigration status, military/veteran status, age, and criminal history.
That means even a heartwarming letter about how a condo’s open floor plan and elevator would make life easier for a buyer’s disabled son could open the door to litigation, since it speaks to disability, medical condition, familial status, and gender.
“As lawyers, it’s our job to be paranoid and worry about these things,” said Gov Hutchinson, CAR’s general counsel.
However, it wasn’t a rash of lawsuits that spurred the organization to issue its guidance; instead, Hutchinson said, it was the Black Lives Matter movement and media exposés about discrimination against minority homebuyers.
To avoid even the appearance of impropriety, the group’s most vigilant advice to Realtors is to not accept offers that come with a love letter — and to preemptively announce that none will be accepted.
Even worse than words on a page are accompanying photos, which are more prone to legal pitfalls. Photos can contain obvious identifiers like race, gender, and marital and familial status, but even seemingly trivial hairstyles or tattoos could speak to ancestry or military status.
It may seem overly cautious, but sellers and their agents are largely following CAR’s advice. Some listing agents explicitly say in their marketing materials that they will not accept letters or pictures — or warn that such offers will go straight to the trash heap.
“So much of what happens with offers is about communication and relationships, and the last thing I want to do is alienate the listing agent by giving them a letter they don’t want,” said Jodi Nishimura of Kai Real Estate.
Making connections
With letters off the table, buyers’ agents have turned to more discreet tactics — saying out loud what they once wrote down. Depending on what is conveyed verbally, the same fair housing red flags can pop up — just without the paper trail.
Buyers will sometimes discreetly slip lucky numbers, such as the 8s beloved in Chinese culture, into an offer to subtly indicate that they come from the same background as the seller.
“They could try to plausibly make that argument: ‘In no way was I trying to say, sell to me because I’m an Asian like you,’” Hutchinson said. “Then it’s just, who’s going to believe you or not?”
Even if it’s counter to CAR’s advice, Hutchinson understands why potential buyers feel the need to make a personal connection.
“Sellers like to envision who’s buying this house that they like so much and put so much effort into,” he said. “But also, sellers, consciously or subconsciously, probably tend to favor people who are like them. That’s the risk.”
Even with the decline of the love letter, agents admit that personal information about buyers often makes its way to sellers. Sometimes it’s enough to seal the deal.
Christie’s Sereno agent Colin Halliday said he advocates for his clients — within fair housing limits — when talking to listing agents. In one Santa Rosa sale, his buyer’s story about wanting to get into politics and improve the community swayed the seller, even though the offer ranked third.
“Those things happen, not as often, but they do happen,” he said.
Political affiliation and volunteer work are not protected classes, nor are other factors that may score points with sellers, like being a corgi lover or an enthusiast of World War II history. Also, buyers are always allowed to write letters that simply compliment the owner for having a beautiful home, although they may read like generic pleasantries.
Though letters that include children could bring up fair housing concerns, some buyers do use their kids to do the adorable dirty work. One offer received by Compass agent Sheila Mofrad ended in 11 cents. In a letter, the buyers explained that it was because their young son wanted to contribute to the house fund.
“Love letters are meant to pull on your heartstrings,” Mofrad said, which is why she likes reading them even if she’s restricted from passing them on to her clients. “Sometimes sellers don’t want to read them, and sometimes they do.”