Let’s see … an auctioneer is selling some real property at auction. He advertises that this subject property is about 5 acres (+/-) with a 4-bedroom home and detached 2-car garage. It’s actually 2.3 acres with a 2-bedroom home, and a 1-car garage, plus the home has just recently been condemned by the county.
I’m bidding online from a distance and cannot inspect the property myself, understandably relying on the auctioneer’s representations. I become the high bidder and only then find out the auctioneer has provided me inaccuracies, errors, and omitted material information — yet, he tells me he has no liability?
On the contrary, I would suggest this auctioneer does have liability, and given there’s insurance covering errors and commissions (E&O insurance) let’s hope he has some. As far as “accuracy,” this auctioneer should hope his inaccuracies are few and far between — as well as unintentional — to avoid being accused of fraud.
Maybe this auctioneer is only bluffing, in that if I buy and accept “as is” then all is well, but if I complain, he makes things right? I doubt it, as the most common responses to claims of inaccuracies, errors, and ommissions are something like, “well, you bought it as is” and since he’s already said he’s not liable I’m guessing that’s going to be the answer.
For professionals in any industry, it would be a tough argument that this auctioneer unintentionally and/or accidentally said 2.3 acres was 5, 2 bedrooms was 4, and a 1-car garage was a 2, and simply forgot about the condemnation order. Maybe a history of mental issues and/or forgetfulness would benefit his defense?
More importantly, since this property is 2.3 acres, with a 2-bedroom home and 1-car garage and not 5 acres with a 4-bedroom home with a 2-car garage, the contract is voidable since one cannot disclaim (say one has no liability) for expressed (descriptions) warranties, intentional or not.
If you prefer legal analysis, here is my article regarding Law Professor Kurt M. Saunder’s (Department Chair and Professor of Business Law at California State University, Northridge) treatise on this subject: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.
Oh yes, indeed this comes from Article 2 of the Uniform Commercial Code (UCC,) and only applies to personal property (goods?) I can assure any auctioneer the UCC is routinely applied to real property auction transactions in courts every day. Additionally, all states have real “estate” licensing which likely prescribes good behavior to retain one’s permission to work.
As [a real property] auctioneer do you have liability for accuracy, errors, or omissions? You do, and disclaiming such thinking you have no liability is foolish. On the contrary, you as an auctioneer have — at a minimum — a duty of honesty, integrity, and fair dealing with bidders. Do you remain unconvinced? https://mikebrandlyauctioneer.wordpress.com/2022/05/28/irreconcilable-eo-disclaimers/.
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 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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