Federal judge blocks Oregon’s ban on real estate ‘love letters’

Realtors can resume sharing “love letters” from potential homebuyers to sway sellers in their clients’ favor while court arguments over the constitutionality of a 2021 Oregon ban on the practice continue, a federal judge ruled late last week. 

The letters, heartfelt messages from buyers explaining why they want a particular home, have become a common tool in hot housing markets. Rep. Mark Meek, a Gladstone Democrat who owns a Portland real estate firm, introduced legislation to ban them in 2021 after one of his clients opted to sell their home to someone who submitted a love letter despite receiving more lucrative offers. 

Meek and supporters of the law argue that allowing love letters perpetuates bias, that homeowners are more likely to sell to people of the same race, faith or family makeup. The Bend-based Total Real Estate Group sued over the law in U.S. District Court in November, arguing that it violated real estate agents’ First Amendment rights. 

In his opinion, Chief U.S. District Judge Marco Hernández said the state set out to achieve a “laudable goal” of stopping discimination in housing, but interfered with speech while doing so. 

“Continuing enforcement of [the ban] likely violates the rights of plaintiff and its clients, but also the rights of prospective buyers of residential real estate throughout Oregon,” Hernández said. “It is not in the public interest to enforce a law that is likely unconstitutional, even one aimed at the laudable goal of reducing unlawful discrimination in housing.”

Hernández’s ruling is a preliminary injunction, blocking the law from being enforced while attorneys for the state and Total Real Estate Group argue the merits of the case over the coming months. .  

Daniel Ortner, a Sacramento-based attorney representing Total Real Estate Group, described the ruling as a “major victory for free speech and economic opportunity.” 

“Love letters communicate information that helps sellers select the best offer,” he said in a statement. “The state cannot ban important speech because someone might misuse it.” 

Neither Meek nor a spokeswoman for Attorney General Ellen Rosenblum, who defended the law, replied to inquiries Monday. 

Hernández’s ruling notes that Oregon has a long history of racial discrimination in housing and the effects linger. The state’s 1857 Constitution explicitly barred Black people and people of Chinese descent from owning property, and a 1923 law prohibited Japanese people from owning or leasing land. 

Race-based restrictions were also built into many property deeds, preventing homes from being sold to or occupied by people of Asian or African descent. Those deeds were made unenforceable by the federal Fair Housing Act of 1968, and Oregon lawmakers in 2018 sought to make it easier for homeowners to remove such language from their deeds entirely. 

About 65% of white Oregonians own homes, compared to 32% of Black Oregonians, 41% of Hispanic Oregonians and 45% of indigenous Oregonians, according to a late 2019 report from a legislative task force on reducing racial disparities in homeownership. 

Hernández said that while it’s possible a love letter could result in a homeowner choosing to sell to a particular buyer for discriminatory reasons, the letter itself isn’t illegal. 

“Although a seller may later use the information in a love letter as a basis for discrimination, without more, the act of sharing one’s personal characteristics is not unlawful,” he said. 

He wrote that legislators could achieve their goals through other methods, such as requiring real estate agents to redact information that could result in discrimination, such as not including family photos, or provide more training about fair housing law.