Property auctions are an increasingly popular way for property owners to sell their properties and for potential buyers to snap up a bargain

However, what at first sight appears to be a bargain can turn out to be an extremely costly mistake.

Property auction issues

We have acted on several cases for purchasers who have successfully bid on a property only to discover some significant problem with it.

Examples of situations where buyers have encountered difficulties could include:

  • The purchaser of a long residential lease which was already subject to forfeiture proceedings by the landlord due to significant breaches of the terms of the lease. The new owner would inherit a considerable financial liability to the freehold landlord or faced the forfeiture of the lease.
  • The property being described in a certain way or to include certain things, such as a larger piece of land or parking space, when this is not the case.
  • The purchaser of a freehold of a commercial property discovering that the seller had reached an informal agreement with the existing tenant regarding the rent payable, which did not reflect the terms of the lease provided in the auction pack.
  • A seller of a flat suggesting that it was able to extend the term of the lease and assign the benefit of this to the buyer when in fact legally, this was not possible.
  • Including out-of-date searches in the auction pack, which did not reflect the true position.

The importance of taking legal advice on buying property at auction

One thing that many of the examples above have in common is that the buyer did not take any legal advice on the contents of the auction pack before bidding on the property. Whilst taking legal advice may not seem like a necessary expense before the auction, it can reduce the risk of costly mistakes.

Whilst such advice cannot remove the inherent risk of purchasing a property at auction completely, asking a solicitor to check through the auction pack, identify potential issues and discuss the contractual terms will provide a bidder with a more informed idea of the risk that they are prepared to take and the amount they consider reasonable to bid.

Pre-auction enquiries can be raised with the seller or agent and whilst there would be no obligation on them to respond, if they want to maximise the bids they receive, it might be in their interests to do so.

If you are considering purchasing a property at auction and would like to instruct Cunningtons to assist in considering the auction pack, please do get in touch.

Misrepresentation at property auctions

We have previously written about misrepresentation in a residential property context (read My Seller Lied To Me here). This article focusses on property misrepresentation in the context of auctions.

The first thing that needs to be said about auctions is that generally, the applicable contractual terms have not been negotiated between the parties. They are generally presented in the auction pack on a “take it or leave it” basis. It is not uncommon for contractual terms to be heavily one-sided and to pass all the risk (and normally the cost) on to the successful bidder.

The contractual terms will invariably contain what are known as limitation or exclusion of liability clauses, which seek to limit or exclude liability for things said about the property which might not be factually accurate. Sometimes what are called “whole agreement” clauses are included, and these seek to specifically exclude anything said about the property which might otherwise have become a contractual term. Effectively, these clauses seek to protect the seller by saying that anything said about the property which is not included in the contract cannot be relied on if they turn out to be inaccurate.

Whilst “buyer beware” or “caveat emptor” is a principle of law, meaning that buyers should undertake the necessary steps they want to check the suitability of what they are going to purchase, the law does seek to balance the requirement for buyers to do this against the broad requirement for sellers to at least try to be accurate in the information that they provide. Certainly in cases of fraudulent or reckless misrepresentation there is some scope to challenge clauses which seek to limit or exclude liability.

Section 3 of the Misrepresentation Act 1967 provides that any terms within a contract which would exclude or restrict a seller’s liability for misrepresentation, or limit the remedy available to a buyer for this, are of no effect unless they are “reasonable”. If such terms are unreasonable and of no effect, then the misrepresentation is actionable and a claim can be pursued.

Test of Reasonableness

The test of reasonableness is contained in Section 11 and Schedule 2 of the Unfair Contract Terms Act 1977 (UCTA).

Sadly for buyers, there is not a black-or-white, yes-or-no test or criteria to determine whether or not such clauses are reasonable or not; merely examples of what may or may not be reasonable in the circumstances. The test is to a large degree subjective and this means that the Court has the ability to consider what the parties knew, or ought reasonably to have known, about the situation at the time. Each of these cases is therefore very fact-specific and a careful consideration of all of the facts is necessary.

Broadly, the guidelines set out in UCTA which the Court will consider are:

  • the bargaining positions of the parties, taking account of alternatives that the buyer might have, such as alternative property;
  • whether there has been an inducement to agree to the term or had an opportunity to enter into a similar contract with someone else without such a term;
  • whether the buyer knew or ought reasonably to have known of the existence and the extent of the term;
  • where the term excludes or restricts liability if some condition was not complied with, whether it was reasonable at the time the contract was entered into to expect that this condition would be met.

Case law on exclusion and limitation of liability clauses is extensive. This is understandable to the extent that the law exists to balance the interests of a seller to sell a property without fear of a future claim and the right of a buyer not to be misled, certainly not deliberately. Whilst cases can provide helpful guidance and may be relevant to your particular circumstances, they are rarely conclusive of the matter, as when situations like this arise, there are always factual differences.

Further advice for auction buyers

Check carefully what the terms say about the fees. Often there will be a contractual clause obliging the successful bidder to pay the seller’s legal costs. These can sometimes be quite high and an unexpected expense which should otherwise have been factored into your decision in respect of the maximum bid you are prepared to make.

Often, searches are included in auction packs, as it would be a rare circumstance when a buyer would have time to undertake their own searches. Normally the cost of these searches will be passed on to the successful bidder as well. Any searches should be checked carefully for what they reveal. They should be checked to make sure they are up-to-date. If there is missing information or queries which come out of the searches, the risk of this should be considered when bidding for a property. If searches are inadequate, then checking the auction terms to see whether the buyer can rescind the contract in the event of discovering something untoward later is worthwhile doing.

If you require finance or a mortgage to purchase the property, make sure that your lender is on board and satisfied that the property is going to provide good security.

We have acted for clients who have successfully bid on a property, paid a sizeable deposit and then discovered a defect in the title to the property, or something else which makes the property unsuitable security for a mortgage. The lender then withdraws the mortgage offer, leaving the client in a position of being unable to complete, and therefore liable to lose their deposit, or have to seek a bridging loan or some other finance at considerably worse rates.

Can Cunningtons help?

We would be interested to know about your experiences of purchasing property at auction.

If you feel that you have purchased a property pursuant to a misrepresentation, then we may be able to assist you, let us know your experiences in the comments section.

 

8 thoughts on “Dealing with property auction issues”

  1. I bought a property at auction that had a lapsed planning consent to build an additional property in the garden of the existing house. The price was much more than a single property in that area would cost and the planning application number was on the auction for you to view the plans, in my view alluding to it being an investment.
    Even though the planning had lapsed by 18 months I did not think that there would be a problem re-submitting the plans.
    I paid my 10% deposit at the auction and them contacted the architect who submitted the original plans to act on my behalf to gain planning again. He informed me that the property could not be built as a local farmer owned the road that the new property would be accessed from and he was demanding £50,000 to give access.
    The seller new this and a previous sale not at auction had fallen through due to this problem.
    I have informed my solicitor that I do not wish to proceed with the purchase and I want my deposit of £40,000 back due to misrepresentation.
    The sellers solicitor replied that he expected the purchase to be completed and if not we would be sued for any losses the seller would incur.
    Please can you advise me on my options.

    Thanks

    1. We are unable to provide specific advice on our website. We do not have all of the necessary information and documentation to do this. We can, however, offer some general guidance.

      It seems that you did not rely on any sort of representation by the seller that the planning permission was extant, that it would be easy to re-submit plans or that the plan you had in mind for the land would be achievable. It appears that you noted that the planning had lapsed before entering into the contract (by making a successful bid) and assumed that there would be no issues in proceeding in the way that you thought. Therefore even if the seller had actively stated that planning would be granted, you would not have relied on this statement as you undertook your own enquiries to satisfy yourself. It appears that they provided the details of the planning application and will no doubt argue that it was then down to you to check the position. We are afraid that this is the case, as the principle of “buyer beware” applies equally to auctions as it does any other property transaction.

      Further, planning applications relate to a local authority’s function of ensuring compliance with planning policy. It is not generally relevant to the legal rights that anyone may have in relation to the property or land, in this instance, whether or not a third party may seek to exercise their rights to prevent the land being used in a particular way.

      The seller was not obliged to disclose the reasons why the previous sale or sales fell through. Many properties are auctioned because there are some issues with selling the property in the “traditional” way. Many bidders at auction do not instruct a solicitor or surveyor to investigate the property before bidding, which is in contrast to a situation where a buyer makes an offer and the solicitor and surveyor investigate before contracts are exchanged. Purchasing a property at auction is always a risk. That risk can be mitigated by instructing a solicitor and surveyor to look at the auction pack and property before placing any bids.

      As mentioned, we are unable to provide specific advice and you should ask your current solicitor about your options. However, it seems to us that your options may be limited to either forfeiting the deposit or completing the purchase, adapting your plans accordingly.

      1. The purchase was agreed after the auction finished, it never met its reserve so the deal was finalised by phone. Does this still fall under an auction contract as the gavel never fell?

        Thanks

        1. Thank you for your comment.

          At an auction, a contract is formed when the hammer falls. However, whether or not the auction terms and conditions will still apply to the transaction will ultimately depend on what the contractual documentation says. If the auction documentation was used, instead of new contract being drawn up, it may be that these terms and conditions still apply.

          You mention that the deal was finalised by telephone. Unless a contract in writing was entered into, this would not comply with Section 2 of the Law of Property (Miscellaneous Provisions) At 1989. Save for a few exceptions, auctions being one of them, all contracts for the sale of land must be in writing. We suspect you mean that you agreed the terms of the purchase, which were then committed to writing.

  2. I have purchased a property at auction recently to learn that it has knotweed which was not mentioned in the particulars.

    I went to view the property on 2 occasions prior to the auction and Knot weed was cut to surface level and was not present.

    I’ve owned the property 2 weeks and it’s growing and is causing all sorts of concerns and I have been told I have rights in issuing a claim,

    1. Thank you for your comment Sandeep.

      This is a tricky one. On the one hand, auction terms and conditions are normally drafted in such a way to attempt to exclude any possibility for a misrepresentation claim unless based on the contents of the auction pack, which are normally very limited in terms of information anyway. They attempt to place the entire risk of the transaction on the bidder. Further, it is not clear from what you have written whether or not an actual representation was made in the auction pack. There is a difference between staying silent on a particular point or actively misleading a bidder by suggesting that the property did not suffer from a knotweed problem when it did. If the point was not mentioned, then there can be no misrepresentation, as there was no statement to rely on when entering into the contract.

      Having said this, a deliberate concealment of the issue could amount to a fraud and the basic position is that liability for fraud cannot be excluded from contracts. The burden of proof (what any claimant has to prove to win their claim) is set very high in cases of fraud. Normally there has to be shown an active intention to mislead the other party. This state of mind element can be very difficult to prove. Put into context, there may very well be a difference between someone mowing their lawn which contains knotweed plants but not realising what these plant are or the implications of this, and someone taking deliberate steps to cut back or remove the knotweed themselves knowing that specialist treatment is required by licensed companies and the cost associated with this. As a claimant is required to prove their case, it would be down to you to prove such dishonest intention.

      Whilst you viewed the property, and it is fair to say that the issue may have been identified by you from an inspection had the cutting back not taken place, did you also appoint a surveyor? Normally this would be something a surveyor would check for. If so, there may be a potential professional negligence claim against your surveyor.

      We would be happy to look into the position in more detail for you, so do feel free to contact us. However, perhaps you would like to make enquiries into the cost of removal first. This might put into context the potential cost to you so you can decide whether or not it would be cost effective to embark on a litigious process.

  3. I bought a property at Auction in November 2019, it is bedroomed town house in Derbyshire. I had initially been registered to bid on another property but did not secure the property of preference. I registered for the Derbyshire property as i thought it might be a good deal too if the first fell through. I had the legal pack reviewed but did not go to see the property. I was not going to bid on the property but a sales agent from the auction house called me about an hour before the end of the online auction and encouraged me to bid on it saying it was a lovely property in good condition and that it may be a good investment.

    I went ahead and bid and all was fine, I was paying cash so no problem with the sale going through. I secured a tenant for the property using the property description.

    It was not until I got the keys that I discovered that the property, although a 3 bedroomed town house had been mis described. The description had said it was lounge and kitchen to the ground floor and then 2 bedrooms and family bathroom on the middle floor and a master bedroom and en suite to the 2nd floor.

    The property actually has a garage and one bedroom on the ground floor, a lounge and kitchen to the first floor and 2 bedrooms an en suite and a family bathroom to the 2nd floor.

    The layout of the property therefore had limited suitability for a family as no one would want a child to be on the ground floor when they were sleeping on the 2nd floor. I had to completely rethink the layout and create a smaller lounge and a small bedroom to the middle floor.

    What I discovered is that the auctioneer used the description of another house type in the street which has the described layout.

    I did review the photographs but as it did not say which room was which and had no floor plan I could only go on what was described.

    I contacted the auctioneer who said that they were not liable as they say in the terms and conditions that they expect the buyer to be prudent and to have seen the property but then that does beg the question that as they register who has seen the property then why did they phone me and encourage me to bid and surely the fact that they used a description of another house in the street which was inaccurate for this property still means that they were negligent in describing the property.

    It cost me £4500 to change the property which is still not totally satisfactory. I did not mind that it needed some work but don’t think I would have bid on it if had it been accurately described. Do you think I would have grounds to make a claim against them?

    1. Thank you for your comment, Charleen.

      Buying property at auction can be risky. The terms and conditions are the first thing which would need to be considered and without doing this, it would not really be possible to say what the contractual position is.

      In some cases, the law of mistake might be relevant. There may be the potential for a claim here, however, this would depend a great deal on whether or not you were actively mislead or made reasonable assumptions about what you were buying. Also, it would be necessary to work out whether or not, as a result of any misleading information or mistakes, you altered the property to the description, in which case it could be said that your loss is all attributable to this. If alternations were made which do not reflect the description of the property as given, then there could be an argument to suggest that the cost of doing this work cannot be considered a loss caused by the erroneous description.

      If your total loss was £4,500, then some caution should be exercised. Claims below £10,000 would generally be dealt with in the Small Claims Case Management Track (colloquially referred to as the “Small Claims Court”). The basic rule here is that the parties will not be awarded their legal costs. Whilst we do regularly act for clients with small claims, it is on the understanding that they will be unable to recover their legal costs. If not all of the £4,500 loss to you is attributable to the inaccurate description, then it would be important to keep an eye on the cost/benefit ratio.

      Whilst we are only able to provide general guidance and pointers here, and not legal advice, we hope this is of some assistance.

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