We’ve been telling auctioneers (and their sellers) that they have to “stand behind” their expressions concerning what they are selling. https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.
So, for example, if you say, “It’s a 1-acre lot improved with a 3-bedroom, 1.5 bath home, and detached 2-car garage” then it has to be a “1-acre lot improved with a 3-bedroom, 1.5 bath home, and detached 2-car garage.”
Apparently, some auctioneers think in light of this fact, they may want to only suggest certain facts, rather than guaranteeing (warranting) them? Yet, if you say “It’s a 1-acre lot improved with a 3-bedroom, 1.5 bath home, and detached 2-car garage” it doesn’t matter what you say after including “maybe not.”
Focusing on the bedroom count, it can’t be a “3-bedroom” home, and maybe not at the same time. Rather, it is either a 3-bedroom improvement or not. It also doesn’t appear to be any better for you to suggest you were just “told that” by your seller, a neighbor, or a friend — especially if you weren’t.
In a case that finished up about six months ago, where we were hired as a consultant and expert witness, the auctioneer suggested certain real property characteristics, but said he only was relying on public records, and disclaimed any responsibility.
Ultimately the judge asked the auctioneer why such important information was not verified and why he was attempting to disclaim all responsibility? The case ended shortly thereafter. Simply put, it would be much better if you stood behind anything you express.
Incidentally, if you only expressed this was a “lot with all improvements” then it would only need to be a “lot with all improvements” and nothing more. The less you express, the less liability. The more you express, the better your marketing.
Further, just because you express you’re selling a “1-acre lot improved with a 3-bedroom, 1.5 bath home, and detached 2-car garage” and it turns out not to be, doesn’t mean the buyer will rescind the contract. Rather, it just means the buyer can rescind the contract.
We highly recommend auctioneers talk with their attorneys and share with them this link: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/. Law Professor Kurt M. Saunders‘ analysis is worth your careful consideration.
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 Auctioneers 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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