One year ago, the Oregon state legislature passed a bill to ban real estate-related “love letters” – informal communications from a prospective buyer to a home seller – which are meant to be persuasive and go beyond the “customary documents” exchanged during a sale.
Signed into law by Gov. Kate Brown, the ban garnered national attention, much of it rife with the contention that these amorous missives were a Fair Housing Act violation waiting to happen.
But as the headlines faded and attention fizzled, so did Oregon’s efforts to ban the practice. In March, federal judge Marco Hernandez halted enforcement of the law, suggesting the statute may violate free speech rights guaranteed under the First Amendment.
The Oregon attorney general’s office and real estate commission opted to not appeal Hernandez’s decision.
A May 6 consent decree jointly filed by the state of Oregon and the plaintiffs who previously had filed suit against it – brokerage Total Real Estate Group, represented by the libertarian-leaning Pacific Legal Foundation – is a “complete and final settlement of Plaintiff’s claims.”
Oregon “shall not enforce” the love letter statute, the settlement reads, and must provide notice to the public on the Oregon Real Estate Agency’s website that it will not be enforced. Also, the state must pay Total Real Estate Group and its lawyers’ fees and costs totaling $63,000.
Hernandez must yet approve the consent decree.
“I think Oregon ultimately realized that it could not defend its law,” said Daniel Ortner, a lawyer with the Pacific Legal Foundation. “The state could not justify restriction of truthful and useful speech when there were clearly other less restrictive alternatives it could have tried.”
The Oregon Real Estate Agency responded to questions noting that, “As the court recognized, love letters can enable discrimination. The Agency remains committed to working with real estate licensees to ensure they meet their responsibilities to comply with existing state and federal fair housing laws.”
Indeed, Hernandez’s 29-page preliminary injunction chronicled Oregon’s history of racism. And Hernandez noted that a letter from buyer to seller, passed along via real estate agents, could make a reference to the buyer’s race, religion, sex, sexual orientation, marital status or national origin – and that any such reference potentially could result in discrimination.
But the judge ruled that the legislation was written in too broad a fashion and was not “tailored” to allow for innocuous correspondence. For example, a non-customary document under the law also would include letters about a prospective buyer’s love for gardening, or home repair.
Unclear, though, is whether the Oregon legislature may draft such a tailored bill. In an interview last month, Rep. Mark Meek, who authored the initial measure and who’s also a working real estate agent, said he has no plans to write new legislation.
