In today’s competitive California real estate market, I have seen buyers attempt to obtain an edge on their competition by writing and sending letters to the sellers. These letters describe the buyers, their immediate family, and why they would be perfect buyers for the listed property being offered for sale. Some buyers include photographs of their family with their offer to purchase or rental application.
The buyer’s hope is that the “love letter” to the seller will make that person stand out from other interested parties for the property. These letters are usually written after the potential purchaser or tenant actually walks the offered property, and the buyer mentions complementary aspects of the property in the letter
California law doesn’t prohibit such letters written by a potential buyer or renter to the seller or landlord. And California law requires the potential buyer’s agent to deliver such letters to the seller’s or landlord’s agent, and that agent must give them to his or her client.
A potential problem arises when these real estate “love letters” are written by the potential buyer or tenant, delivered to and read by the seller or landlord of a property, and the writer doesn’t end up buying or renting the property. When this happens, a claim for discrimination under Federal and California law based upon ethnicity, gender, religion, familial status, national origin, disability, sexual orientation or any other protected areas under federal and state laws could be made, leading to costly litigation that the seller or landlord never anticipated. And that litigation most likely will involve the respective real estate agents.
There is no easy way to prevent a discrimination lawsuit from happening, but there are ways to try and protect yourself.
Buyers’/Renters’ brokerage and agent: The buyers/renters’ agent and his or her brokerage should have a written disclosure for his or her buyer clients to be signed and dated, clearly stating that:
- Real estate “love letters” are not recommended to be submitted to the seller or landlord, because they tend to distract from the goal of ending up with a valid contract by letting emotions become involved.
- The buyer client should be advised to consult with an attorney on this issue
- The dated and signed document should be kept in the brokerage’s transaction file.
Listing/Renting brokerage and agent: The listing/renting agent and his or her brokerage should have a written disclosure for his or her seller/landlord clients to be signed and dated, clearly stating:
- Real estate “love letters” are not recommended to be submitted to the seller or landlord, because they tend to distract from the goal of ending up with a valid contract by letting emotions become involved.
- Most importantly, the document should state that any “love letters” to the seller/landlord client by a potential buyer or tenant will be sealed when submitted to the listing/renting brokerage and agent, to be given to the seller/landlord client unopened.
The seller /landlord client should be advised to consult with an attorney on this issue, with the recommendation that the sealed envelope not be opened until after closing or after the property is rented. . This procedure helps curtail any potential discrimination claim down the road with respect to any submitted “love letters”.
The dated and signed document should be kept in the brokerage’s transaction file, along with a dated and signed receipt for the seller’s or landlord’s acceptance of the sealed “love letter”.
A follow up email to the seller /landlord client should be sent, suggesting that the sealed letter not be opened until after the property closes or is leased out, with a copy saved in the transaction file.
About the Author 
B. Edward McCutchan, Jr.
Sunderland | McCutchan, LLP
© 2020
Mr. McCutchan’s practice is primarily civil litigation with an emphasis in defending professionals and businesses in real estate, mortgage brokering, construction, banking and agricultural industries and all phases of dispute resolution through trial and appeal. His area of practice is also agricultural law (viticulture and wineries), trusts and estates, probate, real estate transactions, business law and elder abuse. B. Edward McCutchan, Jr. was admitted to the Bar in 1985 and is admitted and qualified to practice in all California courts and the U.S. District Court, Eastern and Northern Districts of California as well as the United States Tax Court.
