My longtime friend Jan is a veteran real estate agent. She is terrifically successful — I think a member of the “$25 Million Club” for the last 20 years?
I was talking to her the other day and ask how things were going …
She said, “Great!” I just put two homes into contract and I’ve sold 14 homes this month alone. How’s it going for you?”
Of course, she’s in sales, so she knows to ask me how things are, “going for me?” I told her things were going well for us too.
So, Jan has “sold” 14 homes this month? Or, has she helped 14 people sell their homes?
In other words, assuming Jan didn’t own any of these homes (which she didn’t,) did she sell them, or did their owners sell them?
Actually, Jan is an agent for the seller. The seller is the title holder of the property with the exclusive right to actually “sell” his or her home, despite Jan (her broker) likely having a so-called “exclusive right to sell” (exclusive right to market and earn a commission) contract in place; the owner is the one actually selling their home — not Jan.
Or … maybe Jan says:
My longtime friend Mike is a veteran auctioneer. He is terrifically successful — I think he’s been an auctioneer well over 25 years?
I was talking to him the other day and ask how things were going …
He said, “Great!” We just had two personal property auctions last week, and we’ve had 12 this month. How’s it going for you?”
Of course, he’s in sales, so he knows to ask me how things are, “going for me?” I told him things were going well for us too.
So, Mike has “sold” personal property 12 times this month? Or, has he helped 12 or more people sell their assets?
In other words, assuming Mike didn’t own any of this property (which he didn’t,) did he sell those items, or did their owners sell them?
Actually, Mike is an agent for those sellers. The sellers are the title holders of the property with the exclusive right to actually “sell” their property, despite Mike (his company) likely having a so-called “exclusive right to sell at auction” (exclusive right to market and earn a commission) contract in place; the owners are the ones actually selling their items — not Mike.
Why do we go through this exercise? Because many auctioneers say or consider themselves the actual seller of their client’s property — when they are not.
A myriad of laws call for sellers to do this or that — or not do this or that … and while some may distinguish between an actual seller (the owner transferring title) and an agent for a seller, most do not make such a distinction.
For instance, let’s say Jan receives a notice from a federal agency stating that the seller must fill out and return a certain form. Would Jan fill it out and return it? Would Mike? The form says the seller must fill it out and return it, right?
Of course, different government agencies, companies, associations and the like may use the word, “seller” interchangeably with an agent for a seller — whether that is Jan or me, but that distinction would (or should) be expressed.
A notable Supreme Court of Texas case (New Texas Auto Auction Services, L. P. D/B/A Big H Auto Auction, Petitioner v. Graciela Gomez De Hernandez, et al, Respondents) and others subsequent have ruled that auctioneers aren’t sellers per se, but rather place products in the stream of commerce and indirectly facilitate sales — that being real or personal property.
We discussed this case in a bit more detail here in regard to tort law in the auction business: http://mikebrandlyauctioneer.wordpress.com/2013/05/24/tort-law-in-the-auction-business/
I think a good rule-of-thumb for auctioneers is to stop and think before you say that you are the seller, or “sold” something — where maybe you actually only helped a seller sell something. While crowing about selling millions of dollars of real and personal property is quite traditional — not being considered the legal seller of all that property may be a preferable stance.
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. His Facebook page is: www.facebook.com/mbauctioneer. He serves as Adjunct Faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.
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