Auctions sometimes involve approximations. For instance, a vase is 9″ (+/-) or the real property lot is 1.25 acres (+/-). Of course, the question becomes how close + or – needs to be to be acceptable, and what would be considered misrepresentation?
Most would probably agree that a vase that’s 9″ (+/-) could certainly be 9.2″ or maybe even 8.7″ but probably not 12″ nor 6″. A lot that’s 1.25 acres (+/-) could be 1.27 acres or 1.23 acres, but probably not 1.5 acres, nor 0.9 acres.
Would the public (or a judge or jury) consider if your measurement was “reasonably” accurate? Would the same consider your “good faith” and apparent “intent” to be accurate? We think so. Obviously, if the property coming up for auction was open for preview (and measurement) that would also help you and your client.
A case some years ago in which we were contacted noted a real property lot was 80 acres (+/-) but was in reality only about 67 acres. The auctioneer argued that basically 80 minus (-) 13 was 67 but settled the case notwithstanding this somewhat duplicitous claim. Reasonableness, good faith, and intent didn’t favor his argument.
Auctioneers should be careful when approximating by using such wording or (+/-) notations. You should act in good faith with the intent to be accurate and reasonably close. Anything less might relieve the buyer from the obligation to purchase and deserving of a refund.
Finally, the measurement of personal and real property is often inherently less than perfectly accurate. Could a 9″ vase actually be 8.99″? Could 1.25 acres really be 1.2499 acres? The legal community considers a concept known as “de minimus” which we discussed here in regard to absolute auctions: https://mikebrandlyauctioneer.wordpress.com/2022/09/26/absolute-auctions-and-de-minimus/.
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, Brandly Real Estate & Auction, and formerly at 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 Auction Association’s Designation Academy and Western College of Auctioneering. He has served as 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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