Kathy is an auctioneer at an onsite real property auction and a good crowd is in attendance. She opens the auction with terms and conditions, and the fact the minimum bid (reserve) is $150,000. A bidder bids (offers) $150,000 and the auction is underway, with a final selling price of $235,000.
In other words, into a $10,000 speaker system with volume extending over 2,000 feet in all directions, Kathy says, “Sold! for $235,000!” The buyer and seller sign the paperwork and Kathy loads up her table, tent, and other supplies into her truck. Just then the next-door neighbor approaches Kathy and asks, “What did it sell for?”
Kathy contends she lives in one of the 12 “non-disclosure” states (Alaska, Idaho, Kansas, Louisiana, Mississippi, Missouri (varies by county,) Montana, New Mexico, North Dakota, Texas, Utah, and Wyoming) and can’t disclose the sale price … the same sale price she just did disclose.
What Kathy is confused about is that by her state being one of the 12 non-disclosure states, she is prohibited from disclosing the purchase price. She is in fact free to disclose as the “non-disclosure” rules apply to state and other governmental agencies, and allow for no buyer nor seller to be required to disclose.
As we just noted, if she can’t disclose the sale price, she can’t say, “Sold! and then the …” because that’s disclosing the purchase price. And, if she can disclose it at 12:07 pm why can’t she disclose it at 12:15 pm? In fact, she can, anyone attending the auction can, the buyer can, the seller can … because it’s public information.
Some auctioneers argue that they only disclose the sales price with their seller’s (client’s) permission. It seems clear if you are announcing the sale price live, or showing it on your online platform, you already have — at a minimum — the implied (or incidental) authority of your seller to disclose.
Further, from a marketing standpoint, it’s prudent for auctioneers who are obtaining “market value” for their client’s property to disclose in order for other members of the public to make informed choices about which auctioneer to hire. Of course, if you’re not proud of your results, you are free to keep all that secret to the extent you can.
In so-called “disclosure” states (the other 38 states beyond the aforementioned) disclosure is made public and certainly, any other disclosure is permitted. Actually, from an auctioneer standpoint, there’s virtually no difference between a “non-disclosure” state and a “disclosure” state.
Confidentiality, generally, between agents and clients (auctioneers and sellers) has requirements, which are typically nullified under any of four specific circumstances: (1) Court order (2) Made public otherwise (3) To protect one’s license (4) When client authorizes. Chances are if you’re an auctioneer, your client has already authorized and it’s been made public otherwise.
Lastly, there is that pesky First Amendment — remember that? The Government “cannot restrict our speech” outside of any reasonable restrictions such as bound by agency duties in this case. However, as we’ve noted, your agency duties already allow such disclosure as well.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.
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