Steve Proffitt wrote in 2007 that there were at least three warranties made in auctions, as provided for in the [Uniform] commercial code. And maybe, more importantly, an “as is” and “where is” type disclaimer does not negate these warranties:
There is an implied warranty that the title to the goods conveyed by the seller shall be good and the transfer to the buyer rightful.
There is an implied warranty that the seller shall deliver the goods free from any security or other lien or encumbrance of which the buyer has no knowledge.
The auctioneer’s description of the goods becomes an expressed warranty that the goods shall conform to the description.
We recently wrote about this third [bullet point] of this above list here: https://mikebrandlyauctioneer.wordpress.com/2021/07/05/can-auctioneers-disclaim-what-they-tell-you-their-sellers-said/.
There are tens of thousands of auctioneers who believe “as is” and “where is” disclaims all warranties expressed or implied, but Steve Proffitt would say not. You have to rightfully transfer the property, free and clear of any non-disclosed liens or encumbrances and the subject property has to be as described.
For those who hold that the Uniform Commercial Code only applies to personal property, courts continue to apply it to real property auctions given it seems reasonable with the lack of any other guiding law. I know positively buyers at real property auctions expect clear (good, marketable) title unless otherwise clearly noted.
Rarely does a week go by when my phone doesn’t ring … “I found out afterward that I didn’t get clear title,” or “He said this had over 5 acres but it doesn’t and he’s claiming I bought it as is.” Auctioneers can and should do better; those who don’t often end up in court.
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, RES Auction Services, 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 is 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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