Is it illegal to send photos of yourself when offering to buy RE?

24 Replies

I composed an offer letter for my real estate agent to send out and it included pictures of my wife and our new baby. 

After sending out 10 offer letters, I found out she hasn't been including our photos. When I asked why, her response was, "I can't do that due to Fair Housing Laws unfortunately."

Is that true?

Ugh realtors annoy me with this. If she is making the claim she needs to back it up if you have concerns. 

I had to tell two separate realtors this. The concern could be that you are attempting to coerce them to accept your family over another family or individual who may or may not be in a protected class. IE You guys are a white nuclear family, and they picked you because they "think you are a better fit" than the gay black couple that also wrote an offer. If that makes sense. The seller's agent should most definitely limit the exposure to prevent a conscious or unconscious discrimination based on a protected class. 

My most infuriating thing with Realtors is when I'm walking a house and they say "Oh there are offers on it"

"Ok what's the highest?"

"I can't tell you, it's illegal"

Realtors are fiduciary agents. This means they are legally bound to their clients to get them the best deal possible. So wouldn't that mean disclosing the highest offer? So the potential new buyer could have an option to beat it? 

I have had two separate agents tell me that. I said don't make a claim like that unless you can back it up with a state or federal statute. I made one go look it up. (I already knew it was OK to do, Realtors organizations just usually 'discourage' it because they want to keep the market 'orderly')

sorry, rant over

Originally posted by @Austin Hair :

I composed an offer letter for my real estate agent to send out and it included pictures of my wife and our new baby. 

After sending out 10 offer letters, I found out she hasn't been including our photos. When I asked why, her response was, "I can't do that due to Fair Housing Laws unfortunately."

Is that true?

 I can see how it could be a fair housing no-no..  What you look like isn't relevant.

My wife and I were the successful offer on a duplex, closing next week.  The relevant factor to them was that we don't plan on messing with the tenant.  We aren't removing them or jacking up their rent.

What we looked like wasn't relevant.  Planning to love their home or whatever might be. 

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It is explicitly illegal in the state of Oregon to do so. 

While not explicitly illegal anywhere else, NAR gudiance, as well as the guidance from a number of state real estate commissions is not to do it, because it can potentially cause a fair housing violation which is illegal. The agent opens themselves up to a potential $16,000 fine for a first offense from HUD by doing so, and that does not include any potential civil or local liability. Local association rules may also consider it an ethics violation, which can lead to fines as well as suspension of license, or referral to HUD for investigation. As a member of my board, Ive personally been involved in the issueing of fines for this very thing.

Hi Austin,

[1] I can't see why a photo is relevant to the sell decision.

     A good strong offer and the ability to close is what it takes.

[2] And with Pics some people might be more inclined to sell to black family (or some other race) (to "feel" like they are giving them a hand up--illegal too)///look at all of the volunteers for Habitat for Humanity and such--they never come out and swing a hammer for free for me. So you could be shooting yourself in the foot with a Pic--you never know.

I just can't see a photo being any benefit to a buy/sell situation--A good strong offer and the ability to close is what it takes.

It may or may not be legal, but your agent doesn't seem to want to open any can of worms with it--(err's on cautious side).

Just my 2 cents.

Originally posted by @Josh Fannon :

Ugh realtors annoy me with this. If she is making the claim she needs to back it up if you have concerns. 

I had to tell two separate realtors this. The concern could be that you are attempting to coerce them to accept your family over another family or individual who may or may not be in a protected class. IE You guys are a white nuclear family, and they picked you because they "think you are a better fit" than the gay black couple that also wrote an offer. If that makes sense. The seller's agent should most definitely limit the exposure to prevent a conscious or unconscious discrimination based on a protected class. 

My most infuriating thing with Realtors is when I'm walking a house and they say "Oh there are offers on it"

"Ok what's the highest?"

"I can't tell you, it's illegal"

Realtors are fiduciary agents. This means they are legally bound to their clients to get them the best deal possible. So wouldn't that mean disclosing the highest offer? So the potential new buyer could have an option to beat it? 

I have had two separate agents tell me that. I said don't make a claim like that unless you can back it up with a state or federal statute. I made one go look it up. (I already knew it was OK to do, Realtors organizations just usually 'discourage' it because they want to keep the market 'orderly')

sorry, rant over

it  IS ILLEGAL in many states to do this laws were passed about 18 months ago..  has to do with fair housing and the systemic racisim we all hear about.  Oregon was ground zero for the flowery letters pictures of family and dog and how we are going to honor and cherish this lovely home etc etc..  for me buying timber we talk about how we are going to manage the forest  etc. 

Originally posted by @Scott Mac :

Hi Austin,

[1] I can't see why a photo is relevant to the sell decision.

     A good strong offer and the ability to close is what it takes.

[2] And with Pics some people might be more inclined to sell to black family (or some other race) (to "feel" like they are giving them a hand up--illegal too)///look at all of the volunteers for Habitat for Humanity and such--they never come out and swing a hammer for free for me. So you could be shooting yourself in the foot with a Pic--you never know.

I just can't see a photo being any benefit to a buy/sell situation--A good strong offer and the ability to close is what it takes.

It may or may not be legal, but your agent doesn't seem to want to open any can of worms with it--(err's on cautious side).

Just my 2 cents.

Scott this was very prevalent in Oregon with an older grandma and grandpa type seller.  And some would not sell if your from CA.  locals only.  very well know phenomena in Oregon.  Welcome to Oregon now please go home. !!!

@Jay Hinrichs so you're saying this was all in the last 18 months? I guess that makes sense. I was following the BP playbook of creating an emotional connection with the seller by sending pictures. that's something Brandon turner has been recommending for ages. 

Originally posted by @Austin Hair :

@Jay Hinrichs so you're saying this was all in the last 18 months? I guess that makes sense. I was following the BP playbook of creating an emotional connection with the seller by sending pictures. that's something Brandon turner has been recommending for ages. 

well keep in mind the 2% rule does not work anymore either and laws are constantly changing.

NOW  this might not apply to NON owner occ homes and commercial purpose  type transactions .. i just know you cant do it for the average buyer looking to buy from the owner occ seller and live in it.. there may be a commercial carve out.

these letters were VERY common until the new law passed this is why you rely on your agent to keep you abreast of the actual laws and rules.   I have seen some pretty robust ones over the years.. some come in bound books like you get at the photo store. 

@Austin Hair  selling houses isn't a dating app where you pick the pretty person, haha. 

Do you not understand how believing your appearance should give you advantage over others could be seen as discriminatory? Even if it is not illegal, I don't blame your real estate agent for not wanting to participate in this. 

That being said, the very first thing we do when making an offer is search out the seller on social media. Not because we care what they look like, but to find information on motivation. The last deal we did, the seller had posted on Facebook, "just took a new job in Rapid to be with my husband." We offered her cash, no contingences and fast close. 

My point is after searching you out on Facebook, I found out that you are an AirBNB operator and commercial developer. Not many people get excited about selling houses to vacation rental operators and developers. 

@Joe Splitrock offering cash is obviously going to lead to a fast closing, its exactly want the sellers want and its opposite of what investors looking to do multiple deals want to do.

we want send photos to create a relational aspect, so no, I don't see how thats discriminating. it's also what Brandon turner recommends. 

Originally posted by @Austin Hair :

@Joe Splitrock offering cash is obviously going to lead to a fast closing, its exactly want the sellers want and its opposite of what investors looking to do multiple deals want to do.

we want send photos to create a relational aspect, so no, I don't see how thats discriminating. it's also what Brandon turner recommends. 

Brandon's recommendation is old and out dated like many things written in any RE  book he has not had time I suspect to update that aspect to reflect the new laws..

Originally posted by @Austin Hair :

@Joe Splitrock offering cash is obviously going to lead to a fast closing, its exactly want the sellers want and its opposite of what investors looking to do multiple deals want to do.

we want send photos to create a relational aspect, so no, I don't see how thats discriminating. it's also what Brandon turner recommends. 

 Many investors use cash to acquire properties. I ultimately closed the deal with financing and the seller didn't care. The fact that that I could have met the closing date with cash is what mattered. 

Discrimination can happen anytime appearance is part of the selection process. Even if your intentions are innocent, the seller may pick you because you "look right" for the neighborhood. That is the problem. Bottom line, there is no relationship between buyer and seller beyond financial. Stick to the terms of the deal and try to optimize your offers, so the seller sees them as stronger. Waiving inspections, higher down payments or cash offers are all ways to help get offers accepted.

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@Austin Hair  

Great feedback from @Russell Brazil @Jay Hinrichs and @Joe Splitrock already.  

Your state may not have a law forbidding it (yet) but it does begin to encroach on Fair Housing Laws territory.  In fact, any time information is shared regarding any of the seven protected classes: race, color, religion, national origin, sex, disability, and familial status it gets scary quick. For example: if a buyer submitted a letter with a picture of their family the other party may assume color, sex, and familial status. That's three protected classes right there. It may be difficult to prove discrimination based on this but it certainly opens up the door. I would also consider it this way, including a picture could be seen as a strategy to gain an unfair advantage and/or bias when selecting an offer. This is exactly what NAR is trying to prevent. I think @Scott Mac 's comment summed it up well:

[1] I can't see why a photo is relevant to the sell decision.
A good strong offer and the ability to close is what it takes.

@Josh Fannon I cannot speak for your state but in Texas, the listing agent may share details on the offers so long as their client has authorized them to do this.  The listing agent should be saying 'my client has not authorized me to share that information'. But it's not illegal or an ethics violation if done with the correct approval.  

For the buyer, you are correct.   The buyer's agent has a fiduciary responsibility to their buyer client also and if the agent knows information they need to share that.  This can be a grey area if the agent is representing two buyers who both submit an offer.  But that's a much more detailed response for another forum thread.  

I think much of the frustration on this topic for many consumers comes in a lack of education.  Either the agent's own misunderstanding or from the agent's unclear explanation to their clients.  

@Bryan Noth Id contend it is not nearly as hard to prove discrimination, or the intent of discrimination as people think it is.  Having heard numerous complaints through the years, you would be shocked how many people openly admit it in the hearings without even realizing. 

"We knew the seller was a family, and we wanted them connect with us because we have a young growing family." Intent to cause a fair housing violation based on the protected class of familial status. Nearly every time Ive been involved in hearing a case where we have issued fines regarding letters/pictures or the such, the person we fined openly admitted to the violation without realizing it was in fact a violation, and usually continued to believe even afterwards they were in the right.

A Federal Court upheld a finding by the Massachusetts Court of Appeals in the Linder V Boston Fair Housing Commission, that "Discrimination need not have actually occurred, or even been intended for a Fair Housing violation to have occurred."  Now granted that is in the 1st circuit that was found, so technically, would only be precedent in MA, NH, MA, RI...but the other circuit courts often will often use cases from the other circuits for their own. And the Linder case ended up with a $61,500 fine (After the Federal Court reduced it from an original $76,500 fine) for simply asking in casual conversation "So where are you from?"

Well this is all news to me. thank you everybody for sharing. It's crazy how we have mischaracterized the word discrimination. It used to be called building rapport, now its illegal. As an investor, you should be trying to do anything in your power to gain an edge, but by these definitions any one who likes me is now guilty of discrimination, even though thats not true.

What are people doing to build rapport with these new laws in play?

So what are you supposed to think about selling your house to "Miroslav and Ekaterina Semenov," or "Szymon and Viktoria Wisniewska," or maybe "Gianfranco and Ginerva Cesareo"?


"Love letters" pretty much became a thing of the past about a year ago... NAR pointed out that sharing that much info on the buyer makes it too easy for sellers to pick or deny buyers for discriminatory reasons. Many listings now specify "no love letters please" in the listing description or offer submission guidelines, and we're not seeing them nearly as much anymore. We have to be careful about not including anything about race, ethnicity, sex, sexual orientation, familial status.

I've read that previously love letters were the #2 decision-making element in an offer, after cash. So I can understand how it's hard to give up this valuable tool. You can still have your agent build rapport with the listing agent and pass on good words about you, but just focus more on other things sellers are concerned with besides the heart strings stuff. Letting them know you have a high probability of closing is more important than any of the emotional appeals anyway. Here are some other strategies that work in lieu of being able to sweet-talk the seller with a letter, or charm them with your dashing good looks:

Go direct to sellers. Avoid bidding wars altogether by avoiding listed properties. 

Be first

Be a cash buyer. (you can still use leverage when offering cash, and there are even "same as cash" programs/bridge loans that give you the advantage of being a cash buyer even if you don't have the cash). 

Include Proof of Funds

Have your lender call.

Make your offers as clean as possible. Waive any contingencies that you can, have a quick timeframe to close, etc. 

Offer better terms. Find out what the seller is looking for other than price and offer that. 

Loosen up your buying criteria. Properties that need some work don’t get as much competition.

Use an escalation clause.

Waive appraisal/ include appraisal gap coverage. 

Offer strategically. Make aggressive offers on recently expired listings, properties with more than average days on market, or that have recently had big price drops.

Work with a great Realtor. It's a small sandbox so agents with a reputation for playing nice, who have a large network of colleagues in their local market that they have a good working relationship with, will be more successful in getting access to listings before they hit the MLS as well as having their client's offers accepted.

Make the inspection clause “For Informational Purposes Only”, or waive it entirely if you have the experience/balls . 

Let some earnest money go hard upon signing.

Offer a “Bribe”. Of course I don’t mean a real bribe ;). A listing agent in my office had a hot property in a popular neighborhood in Denver recently. She received 2 offers that included food as part of the contract. One offered two catered meals for up to 12 people from a local high-end catering company. The other one offered $200 in pizza delivery to “help with the stress of selling”. Neither got the deal in that case, but if two offers are otherwise comparable, who knows, maybe $200 worth of pizza could be the differentiating factor. People are definitely getting creative these days to make their offers stand out. 

Here is the advice for Realtors from National Association of Realtors.
https://www.nar.realtor/fair-h...

Instead of a letter....provide gifts.....that might make the seller happy.   When I left Bay Area 20 years ago, gifts were standard.   Hotel stays, Airline points, timeshare weeks, wine baskets, gift baskets, flowers, etc.  

Maybe just put a picture of your dog....

Mischaracterization of the word "discrimination"? I thought Fair Housing laws explicitly define discrimination as using race, color, national origin, religion, sex, family status or disability (in favor for some and against others) within housing practices. It seems obvious that sending a family photo would make issue of at least three of these factors... As previously mentioned, more recent laws seem to acknowledge this point.

If that is the wrong characterization of the word "discrimination", what exactly would be the correct characterization? 


Originally posted by @Austin Hair :

Well this is all news to me. thank you everybody for sharing. It's crazy how we have mischaracterized the word discrimination. It used to be called building rapport, now its illegal. As an investor, you should be trying to do anything in your power to gain an edge, but by these definitions any one who likes me is now guilty of discrimination, even though thats not true.

What are people doing to build rapport with these new laws in play?