Judge Sends a “Dear John” to Oregon’s “Love Letter” Ban 

Discrimination Has Created a Problem 

Oregon has a history of housing discrimination against people of color, that has seeped into the cracks of its very foundation, and begun to rot. According to OPB, the state had laws on the books preventing people of color from owning any land until fairly recently. Evidently, their government policies and industry practices have also been so infiltrated by these beliefs that housing discrimination still exists today. 

In fact, Federal District Judge Marco A. Hernandez cites Oregon’s “long and abhorrent history” of racism and housing discrimination. This notwithstanding, he still issued a preliminary injunction against the state’s 2021 ban on the law that enables the practice of buyers sending what are commonly called “love letters” to homeowners – AKA HB 2550. The practice is common particularly in a hot market – like we’ve seen over the past year in particular, all around the country – and when the supply of houses for sale is far below the demand of buyers, creating a sort of competition for the buyers. 

In Oregon, purportedly to stem the rampant tendency towards discrimination from homeowners, lawmakers led by Democratic Representative Mark Meek from Clackamas County proposed the statewide ban on these so-called “love letters”. An interview with Meek revealed that he himself is also a real estate broker, and not only that but a home flipper with a registered LLC.

One of the big complaints by proponents of the love letters is that homeowners are able to differentiate between individual buyers and investors with big pockets and sweeter deals. For home buyers, it enables them to write a personal letter that may give them an edge with the owner, especially if they really want the home in question, but don’t have the ability to make it a cash offer or have a huge down payment. 

But Meek and others in legislation say that the practice of love letters is perpetuating the even older practice of discrimination within the state. The argument cites the ability of the homeowner to choose the buyer based on race, religion, ethnic background, or sexual orientation as a cause for the ban. Love letters frequently include photos and other identifying information within the letters themselves.

In the interview with Meek, he was asked about statistics, but the only one he offered was that in Oregon, 65% of white people were able to achieve homeownership compared to 32% of Black and African American people. He admitted that these statistics likely had nothing to do with love letters, but still points to anything that encourages these biases as being helpful in stopping them. 

Meanwhile, free speech advocates led by Bend, Oregon’s real estate firm Total Real Estate Group and filed by conservative group Pacific Legal Foundation asked for a preliminary injunction against the law that passed the Senate on a mostly party-line, in 2021, banning any written communication between the buyer and seller other than “customary documents” – without any clear definition of what, exactly, those are. The firm alleged the violation of First Amendment rights. The lawsuit filed on behalf of the 20 agents who comprise Total Real Estate Group, says lawmakers provided no proof that this kind of discrimination even exists.

Real estate agents are not all in agreement, with mixed feelings reported. After the George Floyd incident and all the repressed racial inequalities unearthed subsequently, the National Association of Realtors issued a warning to its members to beware of love letters that seem innocuous, apparently in an industry-wide housing discrimination reckoning. Even Redfin did a report that looked into the best ways to win a bidding war in 2019 and found that a love letter can increase a buyer’s chances by 60%.

Agents themselves have differing opinions, with experiences reported on both sides, of instances where the letters were very successful, while some reporting cases where clients were encouraged to write one and were uncomfortable doing so. It’s been suggested the law should be rewritten, at the very least. More research could be done, most certainly.

Judge Hernandez in Federal Court agreed with free speech advocates, while he applauds an attempt to stem discrimination, he says HB 2550 is “too broad”, and would likely not hold up to any First Amendment contention due to being overly inclusive. He specifically stated it is not in the public’s interest to uphold a law that is unconstitutional, issuing the injunction until a final ruling can be issued. This prevents the state from enforcing the ban, temporarily. It seems more evidence is needed to support the ban, or a rewrite may be necessary. Until the issue is resolved, the Oregon law will not go into effect. 

In my opinion, it’s just one more example of trying to fix an extensive systemic problem with deep roots, the same way we approach medical problems – by putting a bandaid on the symptoms, rather than the deeper cause of the problem in the first place.