Mark Meek doesn’t know what comes next.
“Right now, we are working in a really strong seller’s market and say a seller gets four offers that are identical, but they all include love letters, then the seller ends up picking on personal preference,” said Meek, the Oregon state representative and practicing real estate broker, adding that, “We have implicit biases weighing in on the decision-making process.”
Meek did something big about this last year, shuttling through the Oregon legislature a law that bans “all non-customary documents” from prospective buyer to seller in a real estate deal. But after a federal judge ruled the phrasing of non-customary documents was too broad, Meek and his allies – who feel these letters quickly run afoul of the 1968 Fair Housing Act – are sidelined for a couple of reasons.
The most pressing issue is that Meek’s effort is now in legal limbo after U.S. District Judge Marco Hernandez enjoined the legislation in a March 3 ruling.
Hernandez’s order seemed open to the idea that correspondence potential homebuyers deliver to sellers could divulge information about the buyer’s race, religion or other social markers that could lead to a civil rights violation. But the judge found banning “all non-customary documents” excessively sweeps out “innocuous information prospective buyers provide in love letters.”
Defendants in the case, the Oregon Real Estate Agency and state Justice Department, were asked to respond to Hernandez’s opinion. The defendants’ moved to delay their answer until April 18 in order to “allow the parties to determine whether the case can be resolved without further litigation.”
What would be a satisfactory resolution to both sides? The Oregon Real Estate Agency declined to say, instead noting that it is no longer enforcing the love letter ban.
The Pacific Legal Foundation, the libertarian-leaning group that brought the lawsuit, said that a “stipulated judgement or some other order from the country affirming that the love letter ban is unconstitutional” would be required to settle.
The other matter is whether lawmakers in Oregon, or anywhere else, have the appetite to pass similar legislation likely to face an immediate lawsuit.
As Inman News first reported, the Washington state legislature mulled a narrower version of the Oregon law. But it was not voted on before the winter legislative session ended March 10, as lawmakers continued to discuss the right language.
The Oregon state legislature meets again in May. But Meek has no immediate plans to introduce revised legislation.
“We could get back into session next year to address this,” he said, “Maybe we would narrow it down and be specific in how we can limit these practices without limiting the full practice of the love letter.”
“I was disappointed to hear that it has been by blocked by a judge,” said Janeen Sollman, an Oregon representative, and co-sponsor of the law with Meek. “I have not heard any talk about revising the bill in a future session at this time.”
Allan Lazo, the executive director of the Fair Housing Council of Oregon which pushed the law, sounded a note of slight resignation.
“I wasn’t really surprised by it,” Lazo said of the injunction. “I am disappointed in a way because I certainly feel like there is a need for the law or at least a need for us to make sure that this practice doesn’t result in discrimination in the home buying process.”
Many agents in Oregon and elsewhere favored the law as an affirmative step against potential Fair Housing Act violations. Others, though, are leery of such laws – particularly those in enforcement limbo – interfering with their work.
“My hope is that it just goes away,” said Jim Morain, a Coldwell Banker Bain broker in Bend, Oregon. “At the end of the day, the ethics and things that are covered in real estate really tell you what is OK to disclose and the most important thing to disclose is the financial quality of the buyer.”
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