The housing market is so competitive buyers are doing anything they can to get a home.

A common way to try to stand out is to write a heartfelt “love letter” to a seller — a seemingly harmless note to express appreciation of the home and make a personal connection.

But in this overheated real estate market, what were once simple handwritten or typed letters have lately given way to more polished packages, with photographs of the buyers and even videos, agents say. Some prospective homebuyers even purchase letter templates on sites like Etsy.

But these letters can present problems, according to the National Association of Realtors, raising fair housing concerns. While some agents say the tactic is a tried and true way to win a bidding war, other agents, following recent guidance from NAR, won’t deliver or accept love letters anymore.

According to the federal Fair Housing Act, it is illegal to discriminate in the sale of housing because of race, color, national origin, religion, sex, familial status, and disability. And these letters can be full of those kinds of details.

When I started to collect the letters and the pictures, it became clear they all came from a place of privilege. It was almost always white, heterosexual couples. Sometimes on their wedding day, or with one or two kids and their dog.”

LIZ BRENT, THE BROKER AND OWNER OF GO BRENT

“Typically, a letter like this is telling the seller who is going to live in the home and how they are going to live in it,” said Francine Viola, a broker with Coldwell Banker Evergreen Olympic Realty in Olympia, Washington. “But writing a love letter is not going to get you the house and you’re putting that seller in a position that they could be violating Fair Housing laws.”

A buyer may write a letter to the seller that says: “This is my dream home and I’m excited to live there with my husband and our two young children. We love that the home has a first floor bedroom for my mother, who lives with us. I can imagine the kids running down the stairs on Christmas morning.”

“Right there you have information about family status, religion and a possible disability,” Viola said. “These are protected classes in the Fair Housing Act. You can talk about that kind of personal information, but you can’t do it in a real estate contract.”

Viola said she feels for the buyers who want to snag a seller’s attention. “It’s a boilerplate offer and they don’t feel like they have a lot of control in the process, I get why they want to write a letter to find common ground,” she said.

But she tells her buyers to spend more time writing an offer, not a letter.

Coming from a place of privilege

 When Liz Brent, the broker and owner of Go Brent, who works in Maryland and Washington DC, first began seeing buyers writing letters in the early 2000’s, it didn’t faze her.

But over the past five years, as the market grew more competitive and she saw many more letters with photographs of the potential buyers, she began to see them as a way for buyers to signal personal attributes.”I call them ‘pick me’ letters,” said Brent. “It is “pick me because of who I am.’ ”

The soft discriminatory issues at play, she said, are harder to pin down than clearer forms of bias in real estate and rely more on unconscious than explicit bias. Still, Brent said she began to see a pattern in the letters.

“When I started to collect the letters and the pictures, it became clear they all came from a place of privilege,” she said. “It was almost always white, heterosexual couples. Sometimes on their wedding day, or with one or two kids and their dog.”

She said she’s never seen a letter with a photo of a single person, or a person with a visible disability, or of an older couple.

Her firm recently began stating in their listing information that no buyer letters will be accepted.

“Sellers should be making a decision only on the best combination of the highest amount of money and least amount of risk from a buyer,” she said. It’s not always the highest offer that is the winning offer, she said, but a mix of factors. A letter could help sway a homeowner, but likely for the wrong reasons.

Letters of love or liability?

Last fall, the National Association of Realtors released guidance on love letters for its 1.4 million members, advising agents they can be a liability. Other real estate associations, including the California Association of Realtors, have also flagged letters as a practice that may not be motivated by discrimination, but may still have a discriminatory effect.

It isn’t a rule and there are no consequences for agents who do otherwise, but NAR recommends that its member agents should not draft, read, deliver or accept love letters.

Both sellers and agents could be sued under the Fair Housing laws, and agents have additional professional liabilities because they are licensed by the state, said Bryan Greene, NAR’s vice president of policy advocacy.

“Buyers can say whatever they want and can send letters,” said Greene, “But NAR is saying to its agents that it is a best practice to avoid letters in a recognition that things could go awry, even if there is no legal consequence.”

Greene is quick to point out that the liability is mostly theoretical. He is not aware of any actual case that has been brought as a result of a love letter.

And, he added, it would be hard to bring a Fair Housing complaint unless you had direct knowledge that a seller made a decision based on a detail about one of the protected classes revealed in one of these letters.

“A buyer may suspect that someone took the love letter over other offers,” he said. “Then you’d have to prove that the seller relied on a specific discriminatory aspect of the letter.”

Still, the NAR guidance is a warning for agents and their clients to be conscientious. “If you do rely on a letter, agents and sellers need to document that the decision to accept an offer had nothing to do with race, national origin, religion or other protected classes.”

Best for buyers to focus on price and terms

In such a competitive real estate market, many buyer’s agents may be reluctant to turn off a buyer by telling them not to write a letter.

Technically, agents say, letters that don’t include any kind of information about protected classes are fine. Just saying you like the deck and fireplace is okay, Brent says, but that ultimately shouldn’t matter to the seller.

Similarly, a buyer could write a letter that highlights their intentions with the property — to live in it rather than to flip it, say — Greene said, that doesn’t include any personal descriptions.

Corey Burr, a senior vice president at TTR Sotheby’s International Realty in Washington, DC, recently sold a home listed for over a million dollars that had six offers. A potential buyer took notice of some of the New England and maritime photographs and decor in the house because they were from that part of the country, too. They felt compelled to tell the seller.

“The letter struck a chord with my seller,” Burr said, and they went with that buyer. “But their offer was also the best one.”

It is imperative that sellers don’t choose someone because of a connection that is made through a letter, but on the criteria in the offer, Burr said.

“I’ve never seen a property sell on the letter on its own — only when a letter is also with an offer that is better than someone else’s,” he said.

But he doesn’t tell his buyers they can’t write them. “I don’t encourage it,” he said. “Sometimes they can come off stale and cliche, but buyers are hearing from family and friends that these letters can make a difference.”

It may be small comfort to buyers frantically trying to appeal to a seller, but he says that sellers are less precious about what may happen to their home after it sells or feeling a “connection” with the buyer than buyers may think.

“Letters are not a major part of the transaction,” said Burr. “The meat of the transaction is the price and the terms. That’s where buyers should focus.”

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