A case on which I was consulted regarding another auctioneer, some years ago, involved an unhappy client and a subsequent lawsuit. The issue regarded a chest of drawers and lamp stand that were in the seller’s auction, and ended up in the auctioneer’s brother’s antique store.
Of course, the brother, or anyone else for that matter, could have purchased these items at the auction, but that was not evidenced by the settlement paperwork. That paperwork reflected that neither item had received a bid, and both were “passed.”
In this particular case, there was the additional question of whether or not the item was actually put up for bid, or just set aside; nevertheless, this issue in general is simply, if an item is put into an auction and doesn’t receive a bid, who does it belong to? The answer is just as simple: the seller.
At estate auctions and the like, it is quite common for some items to not receive a bid, or for items to be left behind — for instance, that 2 chairs were sold, but the one with a broken leg was left behind by the buyer. Many times, other bidders will inquire if they “can have it?” since it was abandoned …
Which prompts another question: if an item is sold at an auction, and then is left, who does it belong to? Generally speaking, if the buyer paid for the item, it belongs to the buyer; if the buyer didn’t pay, it still belongs to the seller.
Many times at these estate-type auctions, there is an abundance of debris or other unsold items remaining after the auction. A scrapper or other such individual may offer an auctioneer clean-out services, but what is important there is that the auctioneer has the authority to either discard, donate or otherwise reallocate any debris or other unsold items.
In other words, if the contract between the auctioneer and seller has a provision that any debris, unsold or abandoned property (abandoned meaning sold, but left, would require an agreement with all the bidders as well) is then the property of the auctioneer, or may be disposed of in any fashion by the auctioneer, then these types of title questions are cleared-up.
A sample of a clause in a contract with a seller in this regard might read, “Auctioneer is authorized to dispose of both chattels he deems unsalable and/or unsold at his sole discretion.”
A sample statement in the terms and conditions regarding abandonment might read, “All items must be removed within the time announced at the auction, at the purchaser’s sole cost and risk. Further, any items not removed per these terms are considered abandoned, and become the property of the auctioneer.”
An additional issue with the buyer “abandonment” clause (or the seller “unsalable” clause,) is you as the auctioneer may wish to not take possession of items left or unsold. For example, a buyer might buy a large, outdated machine, only to take a cord or switch off of it, and hope to leave the machine for you to dispose of … which could be very costly. Such clauses could be modified to allow a charge to be assessed for such situations, or damages paid for items left.
Many times, buyers can be discouraged from asking if they “can have it?” with some specific announcements by the auctioneer at the start of the auction. For example, “Folks, you are responsible for your purchases, and you are not to take anything you didn’t buy — that includes items other people purchased, and/or items that went unsold.”
If something doesn’t sell, or sells and is left behind, can someone else have it? Yes, if the auctioneer has authority from his client (or customer) that the property can be reallocated.
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 is Executive Director of The Ohio Auction School.
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